Fahda v Bupa HI Pty Ltd [2025] FedCFamC2G 1316

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

1. The application is dismissed.
2. The respondent have liberty to apply for an order for costs within 35 days after the date on which these orders are pronounced.

Note: The form of the order is subject to the entry in the Court's records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

1. The application is dismissed.
2. The respondent have liberty to apply for an order for costs within 35 days after the date on which these orders are pronounced.

Note: The form of the order is subject to the entry in the Court's records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

1. On 5 September 2022 Mr Aiman Fahda commenced employment with Bupa HI Pty Ltd (Bupa) as an "outbound retention advisor" within the "Bupa Retention Centre"; and he apparently did so pursuant to the terms of a contract of employment dated 22 August 2022. (I will explain later the nature and functions of an "outbound retention advisor"). Bupa is a provider of health insurance services.
2. On 13 December 2022 Mr Fahda lodged with the Fair Work Commission (FWC) a Stop Bullying Order Application (SBOA). On 17 February 2023, before the FWC determined the SBOA, Bupa terminated Mr Fahda's employment. The grounds on which Bupa ostensibly terminated Mr Fahda's employment are set out in a letter Bupa sent to Mr Fahda by email on 17 February 2023. Bupa stated in that letter that Mr Fahda has not demonstrated satisfactory performance against key performance indicators for his role as an outbound retention advisor. That led to Mr Fahda, who is not legally represented, to commence three proceedings, two in this Court, and one in the Federal Court of Australia, which has been transferred to this Court.
3. In broad terms Mr Fahda claims that Bupa terminated his employment and took other adverse actions against him because Mr Fahda had lodged the SBOA with the FWC, and because Mr Fahda had made several complaints and inquiries in relation to his employment using Bupa's "Speak Up" reporting system. In taking such adverse action for these reasons, Mr Fahda alleges Bupa contravened s 340(1), s 344, s 351(1) and s 352 of the Fair Work Act 2009 (Cth) (FW Act). Mr Fahda also alleges that Bupa engaged in unlawful discrimination contrary to the Disability Discrimination Act 1992 (Cth) (DD Act) by failing to make adjustments in relation to disabilities Mr Fahda claims he has.
4. After having made a number of directions, and after the parties unsuccessfully attempted to resolve the matter at mediation, Bupa filed in each of the three proceedings an application for summary dismissal. Bupa submits that, despite having been given numerous opportunities, Mr Fahda has been unable to formulate any intelligible claim to which Bupa could reasonably be expected to respond; and there are no reasonable prospects Mr Fahda will be able to formulate any reasonably intelligible claim. For those reasons, Bupa submits, Mr Fahda does not have a reasonable prospect of succeeding on any of his claims for relief in any of the three proceedings.
5. In these reasons for judgment, therefore, I consider whether I should summarily dismiss all or any of the claims for relief Mr Fahda makes in the three proceedings. I will begin by describing the procedural history of each of the three proceedings up to 15 April 2024, when I made orders for the setting down for hearing of Bupa's applications for summary dismissal. I will then identify the evidence the parties adduced at the hearing, most of which consists of documents created more or less contemporaneously with the events they describe, after which I will set out, on the basis of that evidence, in narrative form the facts and alleged facts that gave rise to each of the proceedings.
6. Having set out these matters I will identify the principles by reference to which I must determine Bupa's applications for summary dismissal. I will then consider separately the claims Mr Fahda makes for relief under the FW Act and under the DD Act. In relation to each set of claims, I will refer to the relevant legal principles to which I must have regard. I will identify and consider the documents in which Mr Fahda has purported to state his claims, and determine whether they do not disclose any intelligible case to which Bupa could reasonably be expected to respond. I will in any event consider whether, on the evidence that was adduced at the hearing, Mr Fahda does not have reasonable prospects of succeeding on any or all of the claims he makes in each of the three proceedings.

Course of Form 4 proceeding up to 12 December 2023

1. On 30 March 2023 Mr Fahda commenced a proceeding (Form 4 proceeding) by filing with this Court an application and a Form 4, being the prescribed form for setting out the grounds on which a person claims that a respondent has contravened general protection provisions under the FW Act other than dismissal of employment. In Part G of the Form 4 Mr Fahda alleges as follows:

(a) In mid-December Mr Fahda made a "F72 Stop Bullying application", in response to which Bupa had taken "unforeseen heavy handed adverse action against" Mr Fahda, namely, the termination of his employment "spearheaded by Antonia T - General Manager . . . to hinder my efforts in exercising my employee rights and safe place workplace/protections via FWX F72 application, proceeding are still underway for stop bullying".

(b) Bupa "offended the law and due process/proceeding of F72 stop bullying or sexual harassment, a CONTRAVENTION [sic]".

(c) Bupa's conduct constituted "[r]etaliation for exercising my rights through legal means of protections to perform the inherent requirement and succeed in my role, for grounds of workplace to be undisturbed and unsuppressed".

(d) Bupa must not take adverse action against Mr Fahda "because of my disability, attributes, attitude, rights sought via F72 FWC".

(e) There was an unlawful termination of an enterprise agreement, it being the case that Mr Fahda's next probation review was due on 5 March 2023. Mr Fahda must be treated "with equal opportunity, support must be applied and acknowledge me and my disability advocate".

1. The matter came before me on a first court date on 26 April 2023. On that occasion I ordered Mr Fahda file and serve all affidavits on which he intended to rely by 10 May 2023, and listed the matter for a further directions hearing on 17 May 2023. Mr Fahda requested an extension of time to file his affidavit and, with the consent of Bupa, I granted Mr Fahda his request. Mr Fahda filed an affidavit on 17 May 2023. At the directions hearing of 17 May 2023 I listed the matter for directions at 2.15 pm on 21 June 2023 to give Bupa an opportunity to review the affidavit Mr Fahda filed.
2. At the directions hearing on 21 June 2023 Mr Cook, who appeared for Bupa, indicated Bupa proposed to apply to summarily dismiss the proceeding. I made directions to that end, and listed the matter on 14 August 2023 to hear such application. On 27 July 2023, however, with the consent of the parties, I vacated the orders I made on 21 June 2023, and made orders referring the matter to mediation.
3. The matter did not resolve at a mediation. I consequently listed the matter for a directions hearing on 12 December 2023 with the other two proceedings to which I will now refer.

Course of Form 2 proceeding up to 12 December 2023

1. On 17 April 2023 Mr Fahda commenced a second proceeding (Form 2 proceeding) by filing an application and Form 2 in which he alleges Bupa dismissed him from his employment in contravention of s 340(1). The Form 2 repeats the allegations he made in the Form 4 proceeding.
2. The matter came before me on a first court date on 17 May 2023, on which occasion I directed that Mr Fahda file and serve all affidavits on which he relies by 14 June 2023, and I listed the matter for directions on 21 June 2023, being the time and date I had listed the Form 4 proceeding for directions. On 16 June 2023 Mr Fahda filed four affidavits but which, it appears, were intended to be four parts of one affidavit. I will refer to these four affidavits as the June affidavit. The June affidavit contains a detailed chronology of events supported by reference to documents. It also attached a document headed "Grounds for Application" which appears to have been prepared with the assistance of a lawyer. I will refer to the contents of that document later in these reasons.
3. At the directions hearing on 21 June 2024 Mr Cook indicated that Bupa intended to apply to summarily dismiss the Form 2 proceeding; and I set down the hearing of such application at the same time I had set down for hearing Bupa's application to summarily dismiss the Form 4 proceeding. On 27 July 2023 I vacated the orders I made on 21 July 2023, and referred the matter to mediation.
4. The matter did not resolve at a mediation. I therefore listed the matter for a directions hearing on 12 December 2023.

The Human Rights proceeding up to 12 December 2023

1. On 15 September 2023 Mr Fahda filed an originating application in the Federal Court of Australia (Human Rights proceeding) in which he alleged Bupa discriminated against him on the basis of disability, sex, and race, contrary to the DD Act, the Sex Discrimination Act 1984 (Cth) (SD Act), and the Racial Discrimination Act 1975 (Cth) (RD Act).
2. On 30 October 2023 Katzmann J made an order referring the matter to mediation, and an order transferring the proceeding to this Court; and the matter was listed for a directions hearing before me on 12 December 2023, together with the Form 2 and Form 4 proceedings.

Course of all three proceedings from 12 December 2023 up to 14 April 2024

1. All three matters came before me on 12 December 2023 at a directions hearing, after which I made the following order in each of them:

1. By 30 January 2024 the applicant file and serve a form of document, to be formulated by Judge Manousaridis in chambers, titled "Statement of Applicant's Case" in which the applicant does the following:

a) identifies each provision of the Fair Work Act 2009 (Cth), the Disability Discrimination Act 1992 (Cth), the Sex Discrimination Act 1984 (Cth), the Racial Discrimination Act 1975 (Cth), and any other act or law the applicant alleges the respondent contravened;

b) in relation to each provision or law referred to in (a) the applicant:

i) concisely state the facts on which the applicant relies for alleging the respondent has contravened the provision or the law;

ii) the loss or damage the applicant claims he suffers or will suffer because of the facts referred to in (i); and

iii) the matters on which the applicant relies for claiming that he has or will suffer the loss or damage referred to in (ii) because of the facts alleged in (i).

2. The matter is listed for directions at 1:45 pm on 21 February 2024.

1. Shortly after the hearing, the Court sent an email to the parties attaching a sealed copy of the orders, together with a document titled "Applicant's Statement of Case" (ASC) which, as provided by the orders, I formulated in chambers. The document is as follows:

A. INTRODUCTION

1. This Statement of Applicant's Case is filed pursuant to orders made on 12 December 2023.

B. PURPOSE

2. This Statement of Applicant's Case is intended to:

(a) identify each statutory provision or other law the applicant claims the respondent contravened or breached; and

(b) in relation to each statutory provision or law the applicant claims the respondent has contravened or breached:

(i) concisely state the alleged facts on which the applicant relies for claiming that the respondent has contravened or breached the statutory provision or law;

(ii) identify the loss or damage the applicant claims he suffered or will suffer because of the alleged facts referred to in (i); and

(iii) state the facts and matters on which the applicant relies for claiming that the loss or damage referred to in (ii) were caused by the alleged facts stated in (i).

C. PROVISIONS AND LAWS RESPONDENT CONTRAVENED

1. The applicant alleges that the respondent contravened the following provisions or laws:

(a) s of the Fair Work Act 2009 (Cth);

(b) s of the Fair Work Act 2009 (Cth);

(c) . . . .

(d) s of the Disability Discrimination Act 1992 (Cth);

(e) . . . . [state all other provisions or laws]

. . . .

D. FACTS AND MATTERS ON WHICH APPLICANT RELIES

D1. Contravention of s of the Fair Work Act 2009 (Cth):

1. The applicant relies on the following alleged facts for claiming the respondent contravened s of the Fair Work Act 2009 (Cth):

(a) [state the facts alleged]

(b) . . . .

(c) . . . .

. . . .

1. Because of the alleged facts stated in paragraph 4 the applicant has suffered or will suffer the following loss or damage:

(a) [state loss or damage]

(b) . . . .

(c) . . . .

. . . .

1. The applicant relies on the following facts and matters for alleging that the loss or damage referred to in paragraph 5 was caused by the alleged facts stated in paragraph 4.

(a) [state each fact and matter on which applicant relies]

D2. Contravention of s of the Fair Work Act 2009 (Cth):

1. The applicant relies on the following alleged facts for claiming the respondent contravened s of the Fair Work Act 2009 (Cth):

(a) [state the facts alleged]

(b) . . . .

(c) . . . .

. . . .

1. Because of the alleged facts stated in paragraph 7 the applicant has suffered or will suffer the following loss or damage:

(a) [state loss or damage]

(b) . . . .

(c) . . . .

. . . .

1. The applicant relies on the following facts and matters for alleging that the loss or damage referred to in paragraph 8 was caused by the alleged facts stated in paragraph 7.

(a) [state each fact and matter on which applicant relies]

D3. Contravention of s of the Disability Discrimination Act 1992 (Cth):

1. The applicant relies on the following alleged facts for claiming the respondent contravened s of the Disability Discrimination Act 1992 (Cth):

(a) [state the facts alleged]

(b) . . . .

(c) . . . .

. . . .

1. Because of the alleged facts stated in paragraph 10 the applicant has suffered the following loss or damage:

(a) [state loss or damage]

(b) . . . .

(c) . . . .

. . . .

1. The applicant relies on the following facts and matters for alleging that the loss or damage referred to in paragraph 11 was caused by the alleged facts stated in paragraph 10.

(a) [state each fact and matter on which applicant relies]

D4. [Continue as above for each provision and law the applicant contends the respondent contravened or breached]

1. On 31 January 2024 I made orders in chambers by consent extending to 20 February 2024 the time by which Mr Fahda could file and serve the ASC, vacating the directions hearings of 21 February 2024, and listing all three matters for a directions hearing on 6 March 2024. On 21 February 2024 Mr Fahda served on Bupa, but did not file, an ASC.[1]
2. At the directions hearing on 6 March 2024 Ms Bulut, who appeared for Bupa, informed me that Bupa considered the ASC to be deficient. I ordered that by 13 March 2024 Bupa provide Mr Fahda a letter informing him of what it submits are deficiencies in the ASC and, if he so elects, Mr Fahda may, by 27 March 2024, provide to Bupa a further draft ASC. I listed all three matters for a further directions hearing on 15 April 2024. Bupa provided a letter as contemplated by the orders, and this resulted in Mr Fahda, on 15 April 2024, providing a further ASC (Further ASC).[2]
3. At the directions hearing of 15 April 2024 I made an order permitting Bupa to file and serve by 13 May 2024 an application in the nature of summary dismissal or the striking out of pleading, together with an affidavit in support, such application to be made returnable before me for hearing on 26 June 2024. I also made an order permitting Mr Fahda, by 11 June 2024, to file and serve affidavits on which he intends to rely.
4. Pursuant to the orders I made on 15 April 2024, in each of the three proceedings Bupa filed and served an application in a proceeding together with an affidavit made by Ms Rumble, Bupa's lawyer. Ms Rumble's affidavit provides a concise history of the proceedings, and annexes the ASC and Further ASC, and the letter Bupa, through its lawyer, sent to Mr Fahda in relation to the ASC. Mr Fahda did not file his affidavits by 11 June 2024. At a directions hearing on 21 June 2024, however, I made an order permitting Mr Fahda until 25 June 2024 by which to file the affidavits on which he intended to rely.
5. Mr Fahda did not file an affidavit. Instead Mr Fahda sent a number of emails to the Court Registry attaching documents on which, it appeared, Mr Fahda intended to rely at the hearing of Bupa's applications for summary dismissal.

EVIDENCE AT THE HEARING OF THE APPLICATION FOR SUMMARY DISMISSAL

1. At the hearing Ms Bulut, who appeared for Bupa, read an affidavit of Ms Rumble, and tendered a court book which, in addition to Ms Rumble's affidavit, included the ASC and Further ASC. I admitted the court book as an exhibit. Ms Bulut also provided to the Court a folder identified as "Additional Documents Received from Applicant 25-26 June 2024", which I eventually marked as "Exhibit B". This occurred after Ms Bulut informed me that "[l]ate yesterday evening and then in the early hours of this morning" Mr Fahda sent "material in the nature of an affidavit", and that "we've printed everything off and collated it for his Honour".[3]
2. Mr Fahda, who appeared by video link, agreed that he had sent material to Bupa's lawyers, as Ms Bulut said; but he asked to present his material "through screen share and then match up with what you have". I informed Mr Fahda that, unless there was any objection, I would give Mr Fahda an opportunity to identify the material he wishes me to look at. I said I would do that after Ms Bulut identified the material on which Bupa relied in support of its application for summary dismissal.
3. After Ms Bulut identified the material on which Bupa intended to rely, Mr Fahda attempted to identify the documents on which he intended to rely by using the share facility available on the video service through which he joined the hearing. That proved difficult. I adjourned the hearing to permit Ms Bulut to identify the documents on which Mr Fahda intended to rely. On resuming the hearing, I was made aware that, in addition to what I eventually marked as exhibit B, Mr Fahda had sent an additional 13 emails to the Court and to Bupa's lawyers, all of which had attachments. At my request, hyperlinks to each of the 13 emails (and their attachments) were forwarded to my Associate's inbox, and my Associate took a screen shot of the hyperlinks. I marked the screenshot as exhibit C, but as a means of incorporating the 13 emails and the attachments to those emails that are accessible by clicking the hyperlinks.
4. On 28 June 2024, after the hearing, the lawyers for Bupa sent to my Associate an email which, under the heading "Emails received by Gadens from Mr Fahda on 26 June 2024 during the Hearing and shortly thereafter", there were identified 14 hyperlinks to emails Mr Fahda had sent, two of which were the same. On 1 July 2024 my Associate sent an email to the parties noting that I proposed to substitute for the then current Exhibit C a screenshot of the list of emails that appears in the email Bupa's lawyers sent on 28 June 2024. At my direction, and in chambers, my Associate accessed the emails and their attachments, and reproduced each of the emails and their attachments into one pdf document comprising 2,379 pages. It is that set of documents that constitutes "Exhibit C". I separately marked as "Exhibit A" a form of affidavit Mr Fahda signed, which was not attested.
5. I now move to describe in narrative form the events, as revealed by the material I admitted into evidence.

1. As I noted at the beginning of these reasons, Mr Fahda commenced employment with Bupa on 5 September 2022 as an outbound retention advisor within the Bupa Retention Centre. At the hearing Mr Fahda explained the nature of the role of retention advisor as follows:[4]

So as a role, I'm a retention advisor. So what I do is I win back customers from leaving Bupa. So very frustrated customers, very angry. You promised me you'd cover me for my leg reconstruction and I had to pay 20,000 out of pocket, I'm done. So I come in the room, I try to save that customer, I throw at them loyalty, welcome packages, and I throw at them a VCG and I tell them come back. And every time I win back customer, I build revenue for Bupa. They continue their monthly premium, and they don't switch to HCF, NIB, they don't switch to Australia Unity, they stay with Bupa, and I claim that as a retain.

1. A document created by Bupa contains the following information about the position of an outbound retention advisor:[5]

The role of an Outbound Retention Advisor (consultant) is responsible for reducing discontinuance of health insurance plan by providing quality customer sales and services to customer at risks, which includes recommendations on appropriate products or solutions to customer's needs and requirements. This is achieved by using inbound and outbound telephone contact functions, including call backs on "high risk" members, and other retention activity required by the business.

Bupa operates a remote workforce Contact Centre; consultants are provided with equipment necessary to perform their role and are required to have a private home office and secure internet connection.

The majority of consultants communication whether this is messaging of face to face video call meetings is conducted via Microsoft Teams.

While performing their role, consultants are logged into a softphone which allows users to make or receive phone calls using VoIP (Voice over Internet Protocol) via their computer. The call functions are controlled by clicking or touching commands on the user interface which activates typical features such as making and answering calls, transferring calls and putting callers on hold, as well as unique features like call recording . When consultants are not engaging with customers on a call , they are required to use specific AUX (Auxiliary codes) to manage non-call time.

Contact Centre employees are provided with a roster which outlines their scheduled work time, coaching, meetings and breaks. Currently [Mr Fahda's] breaks are scheduled daily at first break at 11 am for 15 minutes, lunch break 1:30pm for 40 minutes and last break 4pm for 15 minutes. More information about the physical and psychological demands of the role are provided in the enclosed Job Dictionary.

1. Mr Fahda's employment was subject to the "BUPA Australia Enterprise Agreement 2020" (Bupa EA).[6] There are two provisions that are potentially relevant to the applications before me. The first is cl 4.5, which concerned "Probation Periods":

(a) All employees who are new to Bupa will be required to serve a probationary period of 6 calendar months.

(b) The probation period provides Bupa with the opportunity to determine whether or not the employee meets the requirements of the role.

(c) If an employee does not meet the required standard, their employment will be terminated, with notice of 1 week, prior to the expiry of the probation period. The Leader must consult with the People team before a decision is taken to terminate employment.

1. The word "Leader" is defined in cl 2.4 of the Bupa EA to mean "a person who Bupa has given responsibility for managing Bupa employees and contractors (e.g. a manager, supervisor or team leader)". The expression "People team", however, is not defined; but it may be inferred that the expression was intended to cover persons employed within Bupa's human resources department.
2. Clause 20.2 of the Bupa EA is the second potentially relevant provision. That clause deals with training, and is as follows:

(a) Employees covered by this Agreement will be provided with relevant ongoing training necessary for them to properly carry out their roles and responsibilities.

(b) An employee may request to undertake additional training, which Bupa may in its absolute discretion agree or decline. If approved, the cost of which will be met by Bupa and paid as time worked.

1. Until around 23 December 2022 Mr Fahda reported directly to Ms Rita Awwad, who held the position of "Retention Team Leader" who, in turn, reported to Ms Kirillee Mahon, who held the position of "Contact Centre Manager retention and Complementary Products".[7] After around 23 December 2022, in the circumstances I set out later, Mr Fahda was assigned to a new team leader, Mr Binosh Thomas.

10 October 2022 - Mr Fahda meets with Ms Awwad in relation to a performance issue

1. On 10 October 2022 Ms Awwad sent an email to Mr Fahda in which she referred to a discussion with Mr Fahda "earlier today", and confirmed that Mr Fahda was required to "attend a formal meeting to discuss an allegation against you".[8] The letter identified the allegation as follows:

On Friday the 7th of October 2022 at 12:49pm, while on call with a customer . . . you put the customer on hold and stated words to the effect of "some stuff is going on at the back of the house. I'll be back in 15 seconds" to Chloe Pateras Contact Centre Coach.

1. Ms Awwad noted in her email to Mr Fahda that, if the allegation were substantiated, it may be considered to be a breach of the Bupa policies Ms Awwad identified in the email. The policy to which Ms Awwad referred was: "[e]mployees must be available by phone and email during their ordinary hours of work". Ms Awwad further noted that if the allegation were substantiated disciplinary action may be taken against Mr Fahda.
2. Mr Fahda apparently met with Ms Awwad but "[n]o formal outcome was given post the investigatory meeting".[9]

1. Ms Awwad and Mr Fahda had "catch ups" on 19 and 25 October 2022. During the 19 October 2022 catch-up,[10] Ms Awwad said she and Mr Fahda caught up to discuss his "schedule adherence", but Mr Fahda brought up his medical conditions. Ms Awwad said she wanted to understand what impacts this may have, "and what we could do for you from a support perspective". Mr Fahda said he had "autoimmune conditions and need[ed] time to calm [his] symptoms down". Ms Awwad asked Mr Fahda what he would need from Ms Awwad to support him. Mr Fahda requested he be given the benefit of the doubt if he were late some mornings while he gets a handle on things. Ms Awwad asked Mr Fahda to "have a think about what that looks like from a scheduling perspective". Ms Awwad also referred to Mr Fahda's "schedule to adherence", noting that "today was the third instance where you logged in late after we spoke about your adherence on both Monday and Tuesday". Ms Awwad said:

Particularly when working in a contact centre environment everything is forecasted based on the customers we need to make contact with in the day due to the short period of time we have to contact them.

1. Ms Awwad confirmed that if Mr Fahda needed to log in late, he had to contact Ms Awwad; and that messaging in the team chat was not an effective way to communicate "as your message can get lost in everyone's else's conversation". Ms Awwad finally said as follows (emphasis added):

I lastly just want to reiterate a conversation you and I had in morning about your understanding of your roles requirements not being just about retains, although great you are getting some retains that is not your only KPI. I went through the expectation of your role which includes adherence, customer, compliance, performance and behaviours. If there is anything you are unsure of please let me know and I will take you through each measure.

1. During the 25 October 2022 catch-up, Ms Awwad offered Mr Fahda two options based on his request for support, and Mr Fahda asked for the second option.[11] Ms Awwad said this modification would be in place until 30 November 2022, when the matter will again be reviewed. Ms Awwad further confirmed the following (italics and errors in original):

Reminder to keep in communication with me should you not be able to log in on your start time, we will continue to do what we agreed on the 19th of October of signing in and out.

• Message me on my mobile if you were to log in late and then message me on teams once you were logged in ready.

• System issues to message me directly on teams, should you have system issues which prevents you from logging on, to message me on my mobile.

• If you needed to log off for a short period due to your condition to message me on teams directly when you log off and then message me again directly once you are logged back in.

All other adherence expectations will remain the same as per business processes.

• Text me if you are running late.
• Call me if you are not fit for the work and unable to log in for you shift that day. Provide medical certificates as per request.
• Ensure you are taking your breaks when scheduled (As mentioned you have not been
• taking your breaks, it's important especially from a health and wellbeing you take your scheduled breaks which are 15min first break in the morning, 40min lunch and 15min afternoon break)
• Use the correct AUX codes in your softphone
  • Break - for your 15min scheduled breaks

Lunch - for your 40min Scheduled lunch

Personal Break - Bathroom and water breaks

ACW - Admin time after a call

Call backs Admin - For when you have a call back to complete (inform me when doing so)

Coaching - When you have scheduled coaching with your TL or Coach

Planned Activity - For team meetings/huddles.

If you have any questions please don't hesitate to reach out.

1. In an email Mr Fahda sent on 12 December 2022 to Ms Oberthur, member of Bupa's Employee Relations Team,[12] Mr Fahda gave the following account of what occurred in the catchup on 25 October 2022 (errors in original):[13]

On 25 October 2022, when I was seeking Allowances, ie Meeting it was stated again.

This day was most disturbing for me, my TL would constantly say during our allowances catchup,

"it's not sustainable for us as a business to offer you allowances" (extra break time when neeed)

"We are supporting you in retrospect

"We can only offer allowances for a month.

I responded by stating that it's a life sentence to have a disability, and that I do hope BUPA can advocate for employees like myself.

She replied by stating that ultimately it's a "business, "and again she stated "this might not be the right role for you."

17 November 2022 - Mr Fahda meets with Ms Awwad in relation to further performance issues

1. On 14 November 2022 Ms Awwad sent an email to Mr Fahda in which she referred to discussions "earlier today", and confirmed that Mr Fahda was required to attend a formal meeting to discuss an allegation against him.[14] The allegation was that Mr Fahda had not been adhering to "schedule as per Bupa policies" on 7, 9, 10, and 11 November 2022. Ms Awwad said that, if substantiated, the allegation may be in breach of the Bupa policies she identifies in the email, including the requirement that employees "must be available by phone and email during their ordinary hours of work".
2. According to an email Ms Awwad sent to Mr Fahda on 5 December 2022,[15] Mr Fahda met with Ms Awwad on 17 November 2022 "to allow [Mr Fahda] to respond to the allegations against" him Ms Awwad identified in her email of 14 November 2022. In her email Ms Awwad said that, at their meeting, Mr Fahda acknowledged that his break times were scheduled throughout his shift as follows: 11 am for 15 minutes; lunch break at 1:30 pm for 40 minutes; and a break at 4 pm for 15 minutes. Ms Awwad identified the breaks Mr Fahda had taken which it was alleged exceeded the permitted times; and Mr Fahda provided explanations and responses to what Ms Awwad said about the breaks Mr Fahda had.

17 and 29 November 2022- Mr Fahda makes complaints through "Speak Up"

1. On 17 November 2022 Mr Fahda submitted a complaint through Bupa's internal "Speak Up" intranet page. Complaints made though that channel are managed in accordance with "Bupa's Speak Up Policy". On 21 November 2022 Mr Fahda's complaint was allocated for investigation to Ms Oberthur, who, as I have already noted, was a member of Bupa's Employee Relations Team.[16] Ms Oberthur contacted Mr Fahda on 22 November 2022.[17]
2. According to a Bupa document,[18] Mr Fahda recorded another "Speak Up" on 29 November 2022. Under the heading "Details", Mr Fahda stated that, following a recent "Speak Up", he felt incredibly isolated and targeted; and that his "relationships with team mates have been fractured due to [his] TL Rita Awwad direct interference and excessive use of powers and micromanagement", resulting in "excessive time being taken about [Mr Fahda's] learning". Under the heading "Uploaded Files" Mr Fahda identified 23 items, item 18 of which is as follows (errors in original):[19]

Rita not allowing not affording me free space and room to perform my role and messaging me at unnecessary times. Can see everything O am doing and using this tool to create further discomfort ever since I expressed my feelings this behaviour remains constant at all times I was in break mode yet as change to ACW, a issue I have been experiencing in past months that TL is aware of.

5 December 2022 - Bupa provides written warning to Mr Fahda for not adhering to schedule

1. On 5 December 2022 Ms Awwad sent to Mr Fahda the email to which I refer above. After referring to the matters Ms Awwad and Mr Fahda discussed at the meeting of 17 November 2022, Ms Awwad concluded that, after "careful and comprehensive consideration of all evidence, including all information provided by [Mr Fahda], it has been determined that the allegation is substantiated" (5 December 2022 decision). Ms Awwad noted that while Mr Fahda had given responses, Ms Awwad did not believe Mr Fahda was able "to provide significant reasons" for his "failure to meet the expectations of [his] role". Ms Awwad also stated the following:

I have previously counselled you regarding your adherence to schedule including break times, specifically on:

• 5 September 2022: Your first day at Bupa, business expectations were discussed around adherence. Additionally, during training sessions expectation of adherence and break times were reset.

• 7 October 2022: Confirmed start time and break time in team meeting.

• 11 October 2022: During your formal investigation meeting with myself and Kirillee Mahon.

• 19 October 2022: During your wellbeing discussion regarding allowance.

• 25 October 022: Agreed to allowances and set all other business expectations.

• 27 October 2022: During a team meeting, expectations reset again with the team.

• 28 and 32 October 2022: During your wellbeing discussion.

• 9 November 2022: During your performance review.

You have confirmed on numerous occasions that you are aware of scheduled breaks and the requirements to consistently meet these expectations. These instances indicates a pattern of unsatisfactory conduct and does not meet the expectations of your role and is not acceptable at Bupa.

According I confirm that this letter serves as a written warning.

1. Ms Awwad concluded her email by stating it was her expectation that Mr Fahda would adhere to his schedule "as per business processes" and take his breaks when scheduled. Mr Fahda says that Ms Awwad set up a meeting to discuss the outcome of the investigation that was the subject of the email of 5 December 2022; and, at the meeting she set up, Ms Awwad read out Ms Awwad's email.
2. At 6.42 pm on 5 December 2022 Mr Fahda sent an email to Ms Awwad in which he said he was "saddened to see" that his "submissions were not made in full for this meeting", and "understandably to afford [Mr Fahda] a fair process".[20] Mr Fahda claimed there was "vital information" Mr Fahda shared that is "not mentioned [i]n this report", and "information mentioned numerous times that [Mr Fahda] did not state". Mr Fahda further stated (errors in original):

I have adhered to company policy and schedule to the best of my abilities per adherance in a complex phone system environment. I have always taken onboard my TL feedback where given,

I have not been given any feedback or way to improve if needed for adherance, not in writing or any modules,

to avoid a Humilating meeting of this nature that no doubt effects my wellbeing, reputation and ability to focus on what my passion is, Serving BUPA customers with the knowledge I have and about to gain, along with personal development, and feel apart of a team.

So please understand my positon, I always requested support and not a heavy handed approach inorder to believe in my abilities and not be supressed, but rather be empowered,in a welcoming enviroment and a place that fosters understanding and genuine care.

So im perplexed why no allowanced or understanding was afforded to me prior or post meeting, todays results.

May I suggest as a Meaningful remedy for this area of KPI of Adherance, that the softphone be engineered to not allow calls to drop in after a call ends, and a reminder for new consultants of when to take a break in a fast paced enviroment.

6 December 2022 - Mr Fahda records "Speak Up" about 5 December 2022 decision

1. On 6 December 2022 Mr Fahda submitted a further "Speak Up" in which he stated as follows (errors in original; emphasis added):[21]

My TL Rita and support Person Kirrille using a business tool to aggravate the stability of my employment at Bupa. The most recent meeting on 17 November 2022, on Adherence to schedule, i wasnt trained or shown how to improve in that KPI. and my suggestions ignored on adopting ways to make it work and disallow phone call from customers coming in during key times for break , ie 11 am, 1 :30pm, and 4pm. Where i work in a complex call system environment, fast paced and often experience glitches with softwares which then produce negative or misconstrued results. I had been thrust into meetings of heavy handed and formal nature too many time, along with unregistered meetings by my TL during the month of October. Creating a tense environment, and not once meeting with me to celebrate or appreciate any positive performances. A few of meetings with TL not registered were of bullying nature and compelling me to leave the company, like "third time i tell you that" ..... or Your medical allowances just "don't meet the business needs" and your still not adhering to your break times while at that instant time was taken out, by having to attend unregistered, unscheduled where i would be confused if i have a right to go on a break. Fear of being pulled into more meetings as retaliation if i spoke up, like for example speaking up led to harsh treatment from my TL prying on my Teams chat, and creating a sub chat just to humiliate me infront of the colleague the was connecting with me briefly.

So far ive had 2 investigatory meetings of heavy-handed nature, where i wasnt given an opportunity to have a written statement submitted, but rather often contaminated accounts written by the opposing parties conducting the meetings. i would of appreciated support meetings and guidance in writing or practice before harsh meetings would take place. The environment and culture at Bupa is a complex one, where people like me have little to no advocacy/ support. Ive currently suffered a few medical relapses due to the taxing nature of these procedures. I dont like to be disadvantaged and precious time ta ken away from my personal growth and professional development

7 December 2022 - Mr Fahda meets with Ms Gloyne and Ms Awwad

1. After he was notified of the 5 December 2022 decision, Mr Fahda contacted "Leadership and HR", and requested a review of that decision. On 7 December 2022 Mr Fahda met with Ms Jane Gloyne, Bupa's "People Partner", together with Ms Awwad, although it is unclear from the June affidavit whether there was only one meeting. The June affidavit sets out a detailed account of what Mr Fahda says was discussed. Mr Fahda says he pleaded with Ms Gloyne that Bupa provide Mr Fahda with "the tools and understanding" of "the role and not be subjected to intense investigatory meetings". Mr Fahda requested a second support person "to keep RITA away from" Mr Fahda; and he stated that Ms Gloyne needed to help Mr Fahda with his thinking and worries. Mr Fahda says he asked that his "medical allowances be applied" to his softphone.
2. Mr Fahda asserts that on 6 December 2022 Ms Awwad and Ms Mahon were aware of Mr Fahda's Speak Ups "while the entire time" Mr Fahda "trusted the process of remaining anonymous". Mr Fahda referred to "EXHIBIT 296" which Mr Fahda describes as "13february2023 message from NIMMIKA stating that leadership can read my email and comms with CHAMBER EASTON [sic]".

7 December 2022 - Mr Fahda records a further "Speak Up"

1. On 7 December 2022 Mr Fahda submitted a further "Speak Up" noting that "this will be focusing on 7november2022 [sic]".[22] Mr Fahda claimed he "was not guided, trained, support in regard to Adherence, [sic] where to find it, nothing in writing on start finish times, or informal written warnings or support emails", yet "was thrust into investigatory meeting, a business tool, while managing my life and medical conditions, and trying to perform the role undisturbed but with support, to better myself".

12 December 2022 - performance review scheduled but cancelled and other events

1. A performance review for November 2022 was scheduled on 12 December 2022 with Ms Awwad; but that was cancelled at the request of Ms Mahon, and rescheduled for 13 December 2022. The June affidavit alleges the following occurred (errors in original):

X At 3:45pm on 12december2022 whilst finishing up two complex calls and 1 of the calls was with a incredibly difficult member . . . . where i need a breather ,

suddenly Kirillee created a breakout sub chat with RITA included, interrupting my work and focusing on my important task at hand, she asked why im taking so long with my after call work and why im too slow, see exhibit 61, this act was a form of intimidation with no genuine follow up or call back. it was a humiliating experience in an already distressing time for me at BUPA.

Exhibit 65 points to her form of writing with stress points on her wording "What is requirh" and ..... "assisting"

X on 12 december2022 Exhibit 60, 61, 62, 65 i attempted to call Kirillee what she was in ready "green" available mode. She didn't answer the call and never bothered calling me back thereafter, there was no intention to build a good working relationship with me, or provide support in dealing with difficult customers.

Later that day Rita followed suit with EXHIBIT 63 showing here monitoring me and creating more discomfort as i tried to perform my role and look at my powerbi to fill my score card as i prepare for my next performance review.

1. At 4.40 pm Mr Fahda notified Ms Awwad that he will be taking the rest of the day off. Ms Awwad called Mr Fahda, and, according to the June affidavit, the following conversation occurred (errors in original):

RITA immediately called me and wanted to gather information, i told her I felt discomfort with all the systematic bullying over past weeks i told her

"i feel targeted at the workplace"

she responded "what do you mean" "so its part of process, its my job to ensure our customers are being serviced " ........

-i told her "ill just take care of myself and don't like the systematic harassment"

- she responded "that's a really big word Aiman"..

- i said i didn't do anyhting wrong to serving customers

she said "no one said you did anything wrong Aiman wanted to see if you needed a hand"

- i went on to say "SOMETIME SUPPORT SEEM LIKE HARRASSMENT" with no genuine call backs or

buddy up. "i don't want this anymore"

"i know you want me to resign eventually its going to happen,........my health comes first, ....there are organisations i reached out to' ......support here seems aggravated "at BUPA"

- She said "can you clarify what you mean by that exactly ?"

- replied "i cant disclose" .....i went to to say "for the recent events to effect my health , its effecting me

greatly so, i think u had plenty of chances to slow it down, offer me support, genuine support , im learning, just how u treat my team is would like the same" .......your actions "went so so much i was nauseuos for couple of days, it was just too much" i do understand that you don't like the word harrassment but "my feelings do matter" and what happened to my health definetely does matter ". "i think i deserve an apology"

-Rita responded "an apology for what sorrY?

i said "for how im feeling" ......i just expressed my feelings to you, your asking me an apology for what?

she said "so your asking me to apologise for harrassing you, when i don't ".........

-i said "i think you know what your doing its no like, i think the systematic stuff that happening...your vey well aware whats happening these are your actions, your words and actions."

she said "no no i asked you what was it that i needed to apologise for, once id appreciate you don't assume what im doing what my role is ,..........."Kir

-i said 'same for me, i didn't want to come into this culture, i though this is a safe learning environment'

she said "do you mind just holding one second i'll see if Kirrille is free.

-i said "why" (Kirillee has been getting involved in all my displinary meetingand 12 december2022 retaliation will not soften her up)

..........i responded why, why, why (why keep getting kirillee involved for further humilations and interogations)

- Rita advised she'll catchup tomorrow (ive had more than 15 catchups with RITA)

12 December 2022 - Mr Fahda sends email to Ms Oberthur expressing concerns that Speak Ups to Ms Awwad and Ms Mahon

1. At 7:19 pm on 12 December 2022 Mr Fahda sent an email to Ms Oberthur in which he expressed "concerns about how my SPEAK Ups are being communicated/leaked to my TL and Kirrillee". Mr Fahda then provided some incidents that occurred. Mr Fahda referred to "break out sessions", one of which occurred after Mr Fahda was in "a long 42 minute call with a member". Mr Fahda said he "expressed how uncomfortable it makes me feel to be subjected to such methods when performing my daily duties and responsibilities", its being "an unnecessary distraction and use of business tool". Ms Mahone also asked Mr Fahda why he was in "Admin ACW for 20 minutes". Mr Fahda also referred to Ms Awwad having informed Mr Fahda that "your retention report is not part of your admin work".

13 December 2022 - Mr Fahda lodges a stop bullying application

1. Mr Fahda was absent from work on 13 December 2022, noting that he had a "medical relapse"; but on that day Mr Fahda lodged with the FWC a SBOA.[23] Under the heading "What happened", Mr Fahda stated the following (errors in original):

My Team Leader and One up manager would frequently fine new ways to Bully, cyber harass, and make my employment status uncomfortable to the point where I suffer medical relapse, effecting my Wellbeing.

My TL Often uses Business instruments to aggravate my position at work and explore and heavily apply business processes that BUPA supplies to her, to use against me as a form of intimidation. Although she is well aware that I have clear and present knowledge gaps about Bupa ;policies. It's an Advantage used against me. To serve my TL interest.

It's a humiliating situation for me, investigatory meetings are classed as serious and heavy handed, abusive methods done in secret where I can't express my emotions to colleagues for support, because I may face further disciplinary actions if I open up, so I suffered misadventure many times surrounding those events and did not get paid for such sufferings. So I must endure this type of business procedure, a form of bullying my leaders have a tendency to use, with ease and I must endure its taxing ramifications in silence for months.

1. Mr Fahda claimed that the bullying occurred in an "online, Cyber environment"; and that it occurred on 10, 12, 13, 25, and 26 October 2022; 15, 17, and 28 November 2022, and 2, 5, 7, and 12 December 2022. Mr Fahda provides some information about what he alleges occurred on some of these days:

(a) On 25 October 2022, when discussing Mr Fahda's medical allowance, inappropriate remarks were made creating discomfort in and making Mr Fahda to feel like his medical condition is a problem for Bupa. The person or persons with whom Mr Fahda met said that Mr Fahda's allowance request did not meet business needs; the role may not be for Mr Fahda, if Bupa did not want to support Mr Fahda Bupa would not, and "this extra break of 15 min/Allowances/adjustments can only be offered for a month".

(b) On 15 November 2022 Mr Fahda was "thrust into a formal investigations procedures without any preliminary support, guidance or communication".

(c) On 2 December 2022 a Team Leader "would conduct a meeting" with Mr Fahda in a closed area "and proceed with demeaning remarks and how [Mr Fahda] is not able to follow company procedures".

1. Under the heading "Describe the performance or disciplinary process you are involved in", Mr Fahda stated matters the included the following (errors in original):

The disciplinary process would be related to extra break time taken, although allowances were supposed to be put in place for me, yet not done in practice, disciplinary action will ensue for not adhering to schedule 11as; 1:30pm, 4pm breaks, my leaders would use this knowledge gap to there advantage and create further problems . . .

I have observed other team mates take extra breaks, with messages like brb its Bin day" this the requests and behaviours continue, yet Im not permitted to take an extra 2 minute break, in addition to the above

1. Mr Fahda acknowledged in the Form 2 that Bupa has a bullying or sexual harassment policy or procedure for handling grievances or disputes, but he said he did not think Bupa was following the policy or procedure to deal with Mr Fahda's complaint. Under the heading "Explain how you think the policy or procedure has not been followed". Mr Fahda stated as follows (errors in original):

My current situation is getting worse by the day.

Where I now feel unwelcomed and my leaders are free to bully, harass, intimidate me further and there si not stoppages that have been put into effect yet, so I now decided to seek my legal rights. SO I require urgent assistance to ensure I am able to work in a safe online workplace environment at BUPA.

I have made many attempts at contacting Bupa people and requesting reasonable adjustments and for wellbeing specialist to be assigned to me, for a safe work culture. yet all requests were directed to my Leaders whom I have grievances with. Genuine is offered in writing and verbally yet not in practice.

15 December 2022 - Mr Fahda meets with Ms Mahon and Ms Awwad; and has performance review with Ms Awwad

1. Mr Fahda was also absent from work on 14 December 2022. On his return to work on 15 December 2022, "HR" organised a wellbeing catchup with Ms Awwad and Ms Mahon. At the meeting, Mr Fahda says they discussed "medical allowances and my knowledge gap about adherence and if support can be offered". Mr Fahda further says, however, that "as my stop bully application was underway I ceased contact with Kirillee and . . . RITA [sic] thereafter on 23 [D]ecember 2022". The June affidavit describes what occurred at that meeting as follows (errors in original):

on 15 december 2022, EXHIBIT 78 AND 79 i had a performace review with RITA TL and she made adverse comments about my medical condition comments to the affect of "if your not fit to work then your not fit to work", we then discussed my results, and next steps if i can be offered a CERTIFIED coach since my collegues have theirs. (Less contact with RITA).

During the performance review meeting i expressed my struggles on focusing on my roles and many investigatory meetings impeding on my learning phase, personal develoment. see EXHIBIT 74, as I prolifically noted all what said in the chat.

"74. 105. 15december2023 performance review with TL RITA i noted in chat my dismay of being thrust into investigation meetings adverse action for speak UP and related to my performance"

Furthermore RITA stated that she audited my resutls and target dropped from 140% percent to 95 %. (I would later probe this claim and ask for help from COURTNEY OBETH - Employee relations) i refer his honour to below EXHIBIT 189, AND 191 contact with ER - EMPLOYEE RELATIONS - INVESTIGATOR

1. On 15 December 2022 Ms Awwad conducted a review of Mr Fahda's performance.
2. At 10.39 pm on 15 December 2022 Mr Fahda sent an email to Ms Oberthur.[24] Mr Fahda said that it "was really disheartening to be subjected to such inconsiderate methods to make me feel unwelcome in the role from 11 October 2022 onwards". Mr Fahda further said that it had become "an overwhelming problem for me, to request allowances, and for those allowances to not work or be conditioned to fail, or get Given time to allow them to function properly, find my spark (halted with formal; meetings) [sic]"; and that, instead of supporting Mr Fahda, "the easier option is to humiliate me via Formal meetings", noting that a no time was Mr Fahda's request unreasonable. In his email to Ms Oberthur, Mr Fahda also gave the following account of what occurred at his performance review with Ms Awwad on 15 December 2022 (errors in original):

"your Not meeting your overall targets, need to be 100 to meet all expectations."

"last month you were at 145 %, but an Audit reduced it to 95".(something to that effect was said, ie numbers).

This is where TL can rearrange targets achieved and reduce it. Although I can dispute the results, and prove otherwise. We don't have this privelage or shown how to request a review of results, so we're at the mercy of our TL'.s Audit, as she chooses.

"At this stage your not meeting your kpis."

"If performance continues the way it is, you most likely not pass probation ...."

15 December 2022 - Mr Fahda requests adjustments

1. According to an email Ms Gloyne sent to Mr Fahda on 21 December 2022,[25] on 15 December 2022, during a discussion with Ms Awwad and Ms Mahon, Mr Fahda requested permanent adjustments that included the following:
   • Using distress codes on an ad hoc basis;
   • Additional allowances of distress to be used during break times with understanding of 10-15mins; and
   • Understanding from the business that you may need to log off for the remainder of a day should you require it.
2. Mr Fahda met with Ms Gloyne on 20 December 2022 to discuss his request for adjustments, after which Ms Gloyne, on 21 December 2022, sent an email to Mr Fahda in which she said that "we maintain a concern for your health and well-being and need some further information in order to understand how we can best support you". Ms Gloyne said that she would like to write to Mr Fahda's doctor to obtain further information; and Ms Gloyne requested Mr Fahda compete a form of authority to release medical information, and schedule an appointment with Mr Fahda's treating doctor or specialist.[26]

21 December 2022 - Mr Fahda is assigned to a new team leader

1. According to the June affidavit, on 19 December 2022, having ceased contact with Ms Mahon, her subordinate, Shakira, "decided to PM me via team, disrupting my attention and focus from a[n] important customer call". It is reasonable to read "PM" to stand for "performance manage". On 21 December 2022, Calum Cook sent an email to Mr Fahda informing him that "she will assign a new TL"; and on 23 December 2022 Mr Fahda met his new team leader Mr Binosh Thomas. On that day Mr Fahda emailed Ms Oberthur thanking her for arranging that.

12 January 2023 - performance review, and events preceding it

1. On 3 January 2023, after returning from the new year's break, Mr Fahda searched his sales results on Power Bi after noticing "audits conducted" by Ms Awwad on Jarvic, and his targets. Mr Fahda says (errors in original):

i was never given an "improvement plan" by BUPA to excel in any of my metrics, kpis, achieve higher targets or at minimum assigned a BUDDY, its was left open to be critcised by leadership. i was anxious about this notion. To counter this i relied heavily on certain team members to empower me with key knowledge fillers.

1. On 4 January 2023 Mr Fahda "witnessed [his] targets drop continuously". Mr Fahda appears to attribute this to Ms Awwad (errors in original):

I had no influence over target result changes and only previous TL RITA had access to my results and audit process, so adverse action was constant and exhausting draining disempowering to witness my hard work during december period would be negatively dishonestly meddled with, as BUPA builds the case for termination of employment.

1. At 12.40 pm on 5 January 2023 Mr Fahda sent an email to Ms Oberthur attaching an email which recorded the failure of a request for leave Mr Fahda has made for 8 February 2023. Mr Fahda asked whether he was rostered for the month of February 2023 "as per contract probation" or whether "recent development ie SpeakUps" affected his employment.[27] Ms Oberthur responded by email sent at 2.06 pm on 5 January 2023 in which she said she thought that the business was trying to move Mr Fahda's reporting line "in Workday" so that Mr Thomas would be able to approve Mr Fahda's leave "whilst you are temporarily reporting to him".[28] Ms Oberthur suggested that Mr Fahda "just ensure" he speaks with Mr Thomas about any upcoming leave requested; and Ms Oberthur said that she "can confirm your employment status remains unaffected".
2. At 1.26 pm on 5 January 2023 Mr Fahda confirmed that he had applied for leave "via Aspect", and he thanked Ms Oberthur for "confirming my job security for February 2023".[29] Ms Oberthur responded by email sent at 4:48 pm on 5 January 2023 in which she said that she understood that the business was still in the process of temporarily moving Mr Fahda's reporting line "in Workday to" Mr Thomas.[30] Ms Oberthur also stated the following:

Just to clarify, in my previous response I outlined, 'I can confirm your employment status remains unaffected' as you were asking whether there was a connection between your leave request failing and your employment status. I can confirm that your current leave request does not impact your employment status, and likewise, your entitlement to raise a Speak Up does not affect your employment status or whether the business approves/denies your leave. To confirm, your employment is still subject to the terms and conditions as outlined in your employment contract/relevant enterprise agreement.

1. According to Mr Fahda, on 10 January 2023 his relationship with Mr Thomas "begins to be contaminated". On 11 January 2023 Mr Fahda was assigned a coach, resulting in an overall positive coaching session. Mr Fahda, however, no longer received coaching, leaving Mr Fahda disappointed.
2. On 12 January 2023 Mr Fahda had a performance review with Mr Thomas. Mr Fahda has given the following account of the meeting (errors in original):

i had a 1 on 1 performance review with Binosh, he discussed and offered to send me "weekly audits" email so i can stay on top of my results and we also discussed ACW; after call work , and how to manage it and determine best average for everyone to do. i opened up to NEW TL and expressed my difficulties and struggle with ACW and placing customers on HOLD due to the 10 october 2022 serious investigatory meeting see EXHIBIT 148 , that i needed time to be more accurate during admin after the calls, and spend min 6 minutes to 11 minutes per call. To avoid being subject to errors and breaches. He also discussed my break times and adherance, and stated im "sitting on really good adherence" , and he noted one or three occasions of going over break, didn't want me to stress and wanted to strike a healthy balance between results and better mental wellbeing , he again commended me for great adherance results.

9 February 2023 - performance review and some events following it

1. On 9 February 2023 Mr Fahda had a performance review of his January 2023 results. Mr Fahda gives the following account (errors in original):

on 9 febuary 2023, i had a performace review with TL BINOSH,

it was an overall positive review for month of January, all audited .

. . . .

On 9 febuary 2023, during the January month performance review, i posted in the coaching . performance review chat to remind myself to place customer on hold and not be fearful of that feauture, off the back of serious investigatory meeting where it caused PTSD , as it was a shock to me and a threat to my employment. i posted in our chat "REMEMBER - DONT BE HESITANT TO PLACE MBR ON HOLD" I also noted other feedback from performace review posted at 12:32pm - "answ, acw, jarvis 3 to do - sharpen up", referring to answer rate for survey, acw after call work, and jarvis entry, metrics to work on. see EXHBIT 66

"From: Aiman Fahda Sent: Thursday, 9 February 2023 12:45 PM To: Binosh Thomas Subject: Performance scorecard Aiman F Month of Jan 2023 Coaching

Hi Binosh, Thanks for todays performace review, see attached scorecard for last month.

Needs improvement on ACW, Answer Rate and Jarvis.

Bitter Bourd is the way to go to counter a cheat day for diet ......I'll look into it :

1. On 15 February 2023 Mr Thomas "arranged a snap coaching session, since I requested support from a colleague [Ms N] to help me achieve higher targets". Mr Fahda expressed concerns to Mr Thomas why his numerical targets were "set incredibly high", with Mr Fahda's "absentia workplace adjustment" not being included.
2. On 15 February 2023 Ms N and Mr Fahda "connected with each other again, as" Mr Fahda "sought support in achieving higher percentage targets and understand what [his] knowledge gaps" were, "as i was falling behind amidst stop bully application against BUPA [sic]".

Progress in relation to Mr Fahda's request for adjustments

1. According to a letter Ms Gloyne sent to Mr Fahda on 23 January 2023,[31] on 10 January 2023 Ms Grace Beswick, who held the position of "People Advisor", enquired of Mr Fahda whether he had medical information to provide to Bupa, or whether he intended to supply it following an upcoming medical appointment; and Mr Fahda responded by sending an email attaching two medical certificates dated 6 December 2022.
2. On 24 January 2023 Ms Gloyne sent an email to Mr Fahda in which she acknowledged Bupa had received medical advice; but she said the information Mr Fahda provided "does not contain any recommended workplace adjustments from your medical practitioner", and Bupa was unable to interpret the specific medication information Mr Fahda provided, or the conditions disclosed in a medical certificate dated 6 December 2022. [32] Bupa, therefore, did "not possess a medical recommendation for workplace adjustments that support you request". Ms Gloyne denied the claim Mr Fahda made that adjustments were promised in the meeting of 20 December 2022.
3. On 25 January 2023 Mr Fahda sent an email to Ms Gloyne attaching "allowances request from GP".[33] That is a reference to a medical certificate dated 24 January 2023 issued by Dr Kobra, in which it is stated that Mr Fahda has a "medical condition and needs 15 minutes break, [sic] 2 times during working hour", and requesting that Mr Fahda be allowed "to have 2 break, [sic] each of them for 15 minutes from 24/01/2023 to 24/02/2023".[34]
4. On 25 January 2023 Ms Gloyne sent an email to Mr Fahda thanking him for providing the medical certificate of Dr Kobra, as well as Mr Fahda providing a follow up email and hyperlink to Crohn's & Colitis Australia. Ms Gloyne said she had reviewed the material from the doctor, but more information was required.[35] Ms Gloyne said she prepared a letter for Mr Fahda to take to Dr Kobra which outlined specific questions in relation to the workplace adjustment Dr Kobra appeared to suggest. Attached to the email was a letter dated 25 January 2023 to Dr Kobra,[36] in which Ms Gloyne asked that he confirm whether by "needs 15 minutes break, 2 times during working hour" Dr Kobra meant "15 minute working time, 15 minute break, 15 minute working time, and 15 minute break, every hour". Ms Gloyne said that if that is what Dr Kobra meant that the inherent qualities of the role Mr Fahda is required to perform includes taking customer calls beyond 15 minutes. Ms Goyne then said that Bupa may not be able to guarantee worked time did not extend beyond 15 minute interval; and then asked for further information, including whether "there is any flexibility in the application of the restriction.
5. By 1 February 2023 Mr Fahda obtained the assistance of Ms Anna Metcalf, who describes herself as a "Disability Advocate". On 1 February 2023 Ms Metcalf sent an email to Ms Gloyne noting that she is a disability advocate assisting Mr Fahda in matters relating to his employment, and that Mr Fahda had requested her support to comply with Bupa's request for medical information.[37] Ms Metcalf said that Mr Fahda acknowledged Bupa had requested information to assess his capacity to perform the role of retention advisor, and how best to support him; but, due to circumstances beyond his control, the earliest by which he could see his medical specialist is "mid-February". Ms Metcalf requested that Bupa allow Mr Fahda until 20 February 2023 by which to provide the information Bupa requested. By email sent on 1 February 2023 Mr Gloyne informed Ms Metcalf that she will review and write to Mr Fahda about the request.[38]

Communications between Mr Fahda and Ms Oberthur

1. On 7 February 2023 Ms Oberthur sent an email to Mr Fahda in which Ms Oberthur said that, after reviewing some of Mr Fahda's concerns, it became evident to her that Ms Oberthur required further information or context on some of Mr Fahda's concerns. Ms Oberthur listed her questions in a table she included in her email, that consisted of two columns.[39] One was headed "Questions for Clarification"; and the other "Aiman Response".
2. Mr Fahda provides a response by email sent at 11.22 am on 8 February 2023.[40] One of the concerns in relation to which Ms Oberthur requested further information concerned Mr Fahda's stating that "prior to the Probation Meeting held on 15/12/22-11.30 am" Ms Awwad stated that she could not ask Mr Fahda every day if he was fit to be "here". In response to Ms Oberthur's requesting Mr Fahda to "walk me through the context of this conversations? (i.e. what was said prior to this comment)", Mr Fahda responded (errors in original):

I expressed my disappointment and struggle with month of November not being able to achieve my targets and mentioned that the heavy handed investigatory meetings and intimidation really affected my performance. i even expressed my anxiety with having worries about more investigations. I could no perform well. I recall Rita responded by stating I'm human too and she somewhat understands. Then quickly switched to stating if your NOT fit to be at work then you should NOT be at work. Because the absence impacts my results. It impacts my performance and results and customers.

1. On 9 February 2023 Ms Oberthur sent a further email to Mr Fahda requesting that he provide further clarification.[41]

Mr Fahda's email to Ms Cregeen on 8 February 2023

1. According to an email Mr Fahda sent to Ms Cregeen on 8 February 2023,[42] Mr Fahda met with Ms Cregeen on that day. Mr Fahda made a number of statements including the following:

(a) In relation to "ACW concerns", Mr Fahda requested that he have his name removed "as its investigated and subject to my application".

(b) Mr Fahda requested an "impartial performance review, since my bonuses/incentives are due/and I don't want parties related to my application or [sic] have knowledge of it to conduct my review".

(c) Mr Fahda referred to an audit having been conducted by Ms Grisdale at 3.30 pm on 1 February 2023.

(d) Mr Fahda did understand that he "may be locked in to fail for [his] "targets" despite [his] efforts, because of recent events".

(e) The enterprise agreement with Bupa "has not been fully met or fulfilled, I am disadvantaged, ie extra coaching, support, and skill building not provided, since Heaby [sic: heavy?] handed meeting were intended to render me unemployed, so to ensure [I pass probation with my cohort/team I require fairness".

(f) Mr Fahda feared there would be more negative treatment "because I called out my negative experiences at BUPA during months of NOV-DEC, but now I have somewhat a fresh start at BUPA with a new TL, so I URGE my leaders to not disturb my environment".

1. Ms Cregeen responded by sending an email on 8 February 2023 stating that she would "review your requests inline [sic] with our processes and respond when I have further information".[43]

17 February 2023 - Bupa terminates Mr Fahda's employment

1. According to the June affidavit, at 9.17 am Ms Sarah Cregeen invited Mr Fahda to what Mr Fahda describes as a "sudden snap Microsoft teams meeting with HEAD OF PEOPLE SARAH CREGEEN, BUPA GENERAL MANAGER ANOTONIA TYLYARD AND A PSYCHOLOGIST NATHAN MCLEOD [sic]". The subject of the email was "CHECK IN". Mr Fahda says that, on that day, he had "prepared a medical certificate to deal with relapse of my symptoms as i struggled to deal with mutli adverse actions from BUPA especially my target set really high despite my medical absent days, and i slowly worked on my injunction application" [sic]. Mr Fahda appears to have interpreted the invitation as a welfare check-in. Mr Fahda has given a detailed account of what occurred (errors in original):

- i was instructed to turn my camera on

- Sarah and Antonia were waiting on Nathan to join in

- as i go the sense it was a serious meeting i hesitantly asked what the meeting is about

- Sarah replied she will cover it off shortly

- I had a brief one on one chat with Antonia, i attempted to build rapport in the 30 seconds we had together

, spoke about our city life and how i was pleased to meet Antonia to discuss my experience at BUPA. she acknowledged that i wrote to her on Jnuary 2023

- i recall Antonia stating she arranged for a wellbeing professional to join the call, named Nathan.

- she went to discuss my performance at BUPA and expressed concerns about my mertrics, Agent diagnostics, my after call work was extremely high, my NPS survey answer rate was really low , along with alleging long call silences.

-she alleged my performance was well below average as a retention advisor, she claimed to have provided me a certified coach and plenty of opportunity to grow within the team, i recall she went on to say she is proposing to terminate my employment during probation due to my low performance across all my metrics.

- Antonia didnt give me the adequate time or opportunity to respond to her concerns, i did request 1 week for me to prepare my response on why my performance is infact above average despite the bullying , and why a thorough review is required

i was critical yet respectful of her decision, my demeanor was respectful, i told her this meeting is misleading and unwarranted.

- i went on to inform Antonia that there is a F72 STOP BULLYING APPLICATIONS underway, and even requested my disability advocate to be present , and for BUPA to give me time to prepare.

- i also cc'd Antonia into the email trail with CHAMBERS EASTON to put her on the record or notice that there are proceeding underway at the fair work . see EXHIBIT 154

- Sarah Cregeen was also aware of my stop bully application, and was invited to the 8 febuary 2023 conference with Beth Stewart and i was waiting for her response with my after call work performance , and request for additional support. see EXHIBIT 47

"47. 1. 8febuary2023 after FWC STOP BULLY conference i emailed , Attention to Sarah - requests after todays meeting , to review and offer support for ACWGmail"

- i also recall during the CHECK IN meeting i posted my 16 febuary 2023 results from powerbi, displaying above average retention percentage and revenue earned compared to most of my team, and brought attention or made reference to the contract i signed with BUPA as a retention advisor, that my role is to retain and win back , and that i wasn't aware of performance issues with AHT, ACW, NPS with no serious investigatory meeting or coaching emails being sent or letters with notice being sent to me about these performance issues, that this was the first time i hear of BUPA's concerns.

- I expressed my concerns about this snap judgement, Antonia placed the meeting on hold to review my retain results, and the returned , i vividly recall ANTONIA stating "after much consideration" you are not fit for the role as your are underperforming, and am now going to terminate your employment at BUPA.

- i went on to say this action is unfair and that Sarah is aware of my proceeding at the fair work and advised i filed a injunction at the federal court .

- i recall stating to ANTONIA that ive been waiting for an advocate and support with my medical adjustments and wanted her to give me a week to gather my senses and respond to her allegation of my underperformance. she even stated i was a really exprienced retention officer and she expected much higher results , i felt humiliated and ingnored through the meeting, as i would make reference ot my rights, yet SARAH AND ANTONIA remained silence and advised me the meeting is now closed.

- i recall reuesting a long overdue one on one session with ANTONIA because i was waiting for her call and support since January, and was eager to understand her logic and why i wasnt offered adjustment, to my embarassment wanted to ask her what a "AHT" or Agents Diagnostic meant and how its relevant to me, however SARAH interjected few times , directing me to refrain from discussing anything else.

- I delcare and affirm the wellbeing specialist NATHAN remained stoic,, and or poker faced with his head down and he did not say anything helpful in the meeting nor offered counsel .

1. At some stage (the material before me is unclear when or how), Mr Fahda was given a letter dated 17 February 2023 signed by Ms Tilyard that included the following:[44]

As discussed, at the end of an employee's probation period, Bupa undertakes an end of probation review to determine whether the employee's performance during the probation period was satisfactory. Having reviewed your performance across your probation period, unfortunately, I have determined that you have not demonstrated satisfactory performance against the key performance indicators for your role as Outbound Retention Advisor.

Specifically, my key concerns with your performance include that your:

• agent diagnostic score (ADS) is very low, and much lower than what is expected of someone in your role with your level of experience;

• average handling time (AHT) is consistently higher than what is acceptable;

• after call work (ACW) continues to be extremely high;

• regular long silences during customer calls are unsatisfactory; and

• extremely low NPS survey verbal offer rate to customers.

It is of particular concern that your performance metrics indicate that you have not demonstrated consistent improvement across your performance indicators over the past five and half months, despite being provided additional coaching and significant opportunities for learning and growth within the team.

Accordingly, after much consideration, I have decided to bring your employment to an end effective immediately, with your one-week notice period paid in lieu, in accordance with the probationary terms in your contract of employment.

1. Shortly after Bupa terminated his employment, Mr Fahda applied to relist the matter before the FWC.[45] The matter was listed before the FWC at 2:00 pm on 20 February 2023. Before that time, however, the FWC sent an email to the parties which referred to the decision of Deputy President Gostenenik in a case, and noting that the stop-bullying provisions in the FW Act only allow the FWC to make orders to prevent future bullying, and only of the FWC findings there is a risk the worker will continue to be bullied at work. On 21 March 2023 the FWC decided that, given Bupa's termination of Mr Fahda's employment, it did not have jurisdiction to proceed with Mr Fahda's bullying application.

1. Bupa's written submissions were directed to the ASC and the Further ASC. Bupa submitted those documents do not set out material facts that disclose any arguable case. In oral submissions, counsel for Bupa submitted that neither the ASC nor the Further ASC articulates a case that has any prospect of success and, for that reason, each of Mr Fahda's applications should be dismissed. Counsel for Bupa principally relied on the judgment of Judge Lucev in Ellis v Wadjemup Trading Pty Ltd,[46] being a case counsel for Bupa submitted is an "all fours" with the circumstances of Mr Fahda's claims. Counsel then separately addressed each of the initiating documents Mr Fahda filed, as well as the ASC, and the Further ASC, making the submission in relation to each document that it failed to allege material facts, and otherwise allege generalised and conclusory assertions.
2. Counsel made an alternative submission on the assumption that it is possible to identify one potential cause of action, namely, one that relies on the allegations that Mr Fahda's lodging the bullying application with the FWC constituted the exercise of a workplace right; and that Bupa terminated Mr Fahda's employment because he exercised that workplace right. Counsel accepted that the existence of such a claim may be found on a generous reading of the following part of paragraph 4(d) of the ASC (errors and bold in original; underlining added):

Feeling the effects of section 340 and 350 in the workplace and its burdens. The most logical stoppage or injunction at the time, as constructive dismissal and it effects was underway, was to file a stop bully application. FORM F72. This was the second form of workplace right using the most ethical pathway to deal with unethical forms of control, and power imbalance in leadership. As the applicant had no, or little connections within BUPA, newly fledged, in a vulnerable learning stage. and no one would advocate for him, or know about his distressing situation, because of the BUPA confidentiality policy, secondly since HR Jayne failed to deliver and place a wellbeing specialist or apply a new advocate to assist the applicant in his early stages of the role. So naturally the applicant sought external Government services, via Fair Work Australia ,had high hopes no more adversity would ensue. Via Chambers Easton . see SYG 542 nearing an injunction for possible termination. Forced dismissal at BUPA.

1. At this point of counsel's address, the following exchange took place:[47]

HIS HONOUR: But even in that form, assuming one can find that, would that be sufficient for you to put a reply?

MS BULUT: It - as I say ‑ ‑ ‑

HIS HONOUR: I mean, that's the test, isn't it?

MS BULUT: That's the problem. There's - we're reading a lot into that, really inferences, but ‑ ‑ ‑

HIS HONOUR: But not even - I mean, presumably, you would have to - I suppose the question is, if that goes in as a - and I find, well, that's sufficient, will you be able to answer it?

MS BULUT: Yes. In the sense that we can respond by either agree or disagree that as a matter of fact he filed for that was a workplace right and as a matter of fact that he was dismissed. And we can assure your Honour deny that he was dismissed because of ‑ ‑ ‑

HIS HONOUR: Yes. And - so you will be able to put ‑ ‑ ‑

MS BULUT: So that ‑ ‑ ‑

HIS HONOUR: ‑ ‑ ‑ the decision-maker ‑ ‑ ‑

MS BULUT: Exactly. The decision-maker would be able to be called as a witness and be able to give evidence whether they even were aware of any informed file to the Commission and whatever it is that they took into account in dismissing Mr Fahda. Mr Fahda was only employed for five months. He was terminated at the end of his probationary period. The reasons provided were because of his performance, etcetera, and so the decision-maker could speak to those matters. And so to the extent that that was the case, one could respond to that and so, as I say, that's very much our alternative argument, trying to give Mr Fahda a generous reading of his documents, but we say there are serious deficiencies. . . .

1. In his oral address Mr Fahda referred to or addressed a number of matters. First, Mr Fahda referred to documents he had displayed on share screen. One was a document identified as "Annexured_AFFIDAVIT 3 OF 4 syg678". That is the name of a link contained in an email "Aim PRO" sent to the Court and to Ms Rumble at 11:34 am 26 June 2024.[48] When you click on that link, you are taken to Part G of the Form 2 together with 150 documents. Mr Fahda took me to the 92nd page of those documents. That contains an exchange of messages on Teams messaging. Mr Fahda says these occurred on 12 December 2022. A screenshot of the exchange appears as an annexure to the June affidavit; and it reveals the following (errors in original):

Kirillee Mahon added Rita Awwad and Aian Fahda to the chat

Kirillee Mahon 3:45

Hi Aiman, I can see if you been in ACW, are you requiring any assistance?

3:45 pm

Hi there, Kirillee, currently in admin for a very long call

23min ACW

Kirillee Mahon 3:46 pm

What is requirinh over 20mins admin work. Can you please advise as this is exceptionally long time.

I am aware of the time, I would like to understand what it is so we can assist you and have you assisting other customers.

3:49 pm

1.39 min call 2. admin 3 file notes 3. review arrears offers 4.Removed 3 weeks write off offer 5. Reviewed advice from TL and FS for a really long complex call

Kirillee Mahon 3:53 pm

I was on call when you rang hence I was in red. These are all BAU processes. Please advice if you need anything further to reduce these ACW timeframes on similar calls. The ACW doesn't take into consideration time to FS its additional time to the ACW time

3.53 pm

Tried calling Kirillee Mahon, all sorted, just need to do Apollo now its my first or should I continue calls?

. . . .

ok will do the best I can

1. Mr Fahda submitted that this constituted adverse action because he had used the "Speak Up" facility Bupa made available to its employees.
2. Second, Mr Fahda referred to the email Ms Awwad sent to Mr Fahda on 14 November 2022 to which I refer earlier in these reasons. I attempted to obtain from Mr Fahda a statement of the case he intended to make on the basis of this document:[49]

HIS HONOUR: All right. So can I just ask you a broad question? I'm asking this question so I can work out how best to navigate the material. So in broad terms, you were employed by Bupa for around five months.

MR FAHDA: Yes, your Honour.

HIS HONOUR: Your - you say this material will show that you made a number of communications to Bupa raising a number of matters and you say that those communications, or at least some of them, are - constitute an exercise of workplace right. And then you say certain things occurred to you, for example, this disciplinary hearing. And, ultimately - and other things, and ultimately your dismissal. And your case is it's because you made these inquiries and communications. Is that the point? In broad terms. That's what you - that's what your case is?

MR FAHDA: My case is more complex than that. Obviously, more ‑ ‑ ‑

HIS HONOUR: Well, does it include - it might be more complicated but is that the essence of it or is there something more than that? I'm not talking about ‑ ‑ ‑

MR FAHDA: It becomes ‑ ‑ ‑

HIS HONOUR: ‑ ‑ ‑ details but is there something more than that?

MR FAHDA: Yes. It becomes much more sinister. Not only did I be thrust into this hearing to go into hearings with HR, hearings with employee relations and a hearing with stop bully deputy president, Chambers Easton. So it's like a ‑ ‑ ‑

HIS HONOUR: All right. Well, I will come to the Fair Work matter in a moment.

. . . .

HIS HONOUR: Well, just - let's - sorry. Let's just focus on what your case is. Because I'm not going to decide or characterise anything. So, so far, I understand there's communications. You say it's an exercise of workplace rights. There's a disciplinary hearing. There's adverse action.

MR FAHDA: Yes.

HIS HONOUR: Now ‑ ‑ ‑

MR FAHDA: So ‑ ‑ ‑

HIS HONOUR: ‑ ‑ ‑ you mentioned - so - and you say all that was taken because of the communications you've made. I will just be neutral about what you say.

MR FAHDA: Yes. . . . .

1. Third, Mr Fahda next referred to the email Ms Awwad sent to Mr Fahda on 5 December 2022. Mr Fahda said he requested allowances, although Mr Fahda said that that aspect related to the Human Rights proceeding.[50] At this point of the hearing I again attempted to obtain from Mr Fahda an understanding of the case he intended to maintain on the basis of these matters:[51]

HIS HONOUR: . . . Let me just say, so far I understand your case to be adverse action was taken, which includes - and I know you're alleging more, but it includes disciplinary hearings - two of them, a warning letter of 5 December, and ultimately your dismissal, and you say that occurred because of certain communications you made to Bupa using the Speak Up application. That's one part of your claim?

MR FAHDA: Well, I didn't display evidence of my stop bully proceedings - conferences which led to my ‑ ‑ ‑

HIS HONOUR: Well we will get to that - we will get to that in a moment. I'm just trying to say you, at the very least, saying that. Is that correct?

MR FAHDA: Yes.

HIS HONOUR: All right, and so ‑ ‑ ‑

MR FAHDA: So adverse action ‑ ‑ ‑

HIS HONOUR: Just hold on. And the second thing - and the second thing I understand you're saying is that in the course of these events, you communicated to Bupa, and I will be very general about it - certain conditions from which you suffered, and you sought adjustments. In other words, you asked Bupa to take into account the matters that you referred to, and they weren't taken into account. That is to say, adjustments had not been made. So that's the second part of your claim. Is that right?

MR FAHDA: Yes, which moves on to SYG1900.

HIS HONOUR: Right. Okay, so that proceeding concentrates on that part of the case. See, what I'm trying to do, and I don't know if you heard me say this, is I'm going to read this carefully, and see what the detail is. So I need to know, at a general level, what you're claiming.

1. I then invited Mr Fahda to direct his submissions to his case based on his having made an anti-bullying application to the FWC. Mr Fahda said that his lodging the anti-bullying application constituted the exercise of a workplace right; and that it is because he made that application that Bupa terminated his employment on 17 February 2024.[52] Mr Fahda submitted as follows:[53]

Bupa terminated me for accessing SpeakUp tools to exercise workplace rights. They terminated me because I requested urgent adjustments. You see some extracts from that chat. And they terminated me because I made an application before Chambers Eastern . . . . to seek some assistance - urgent assistance in kind of helping me deal with the bullying that I was kind of thrust into.

1. Mr Fahda alleged a number of other matters which he submitted constituted adverse action. These included Bupa having "launched two disciplinary proceedings against me. They monitored me. They humiliated me in front of my colleagues. They would crash into a daily conversation with a customer".[54] Mr Fahda also alleges Bupa failed to give Mr Fahda further time to provide medical reports, as requested by Mr Fahda's disability advocate.[55]
2. After I informed Mr Fahda that I understood his submissions, and that I would look at all of the material, Mr Fahda asked whether I was going to say: "Mr Fahda, you need to polish up your statement of claim. I know the strike-up was vexatious and Justice Connect couldn't help you".[56] By this statement, I will take Mr Fahda to submit that if I find that he does not sufficiently articulate a reasonably arguable case, I should not dismiss any of the proceedings, but provide Mr Fahda with a further opportunity to articulate his case.

1. In reply to Mr Fahda's submissions, counsel for Bupa submitted that the submissions Mr Fahda made were divorced from the pleading documents in the sense that I will not be able to find in those documents the case Mr Fahda had sought to articulate in his submissions. Counsel further submitted that if I find Mr Fahda has not articulated reasonably arguable cases in the ASC and Further ASC, I should not grant Mr Fahda leave to replead. Counsel submitted that Mr Fahda acknowledged that he needed to access legal assistance to enable him to prepare a proper ASC, but Mr Fahda has stated that he has been unable to obtain pro bono legal assistance. Further, even if I were to find that there is a potentially arguable case that is narrower than the claims Mr Fahda seeks to make, Mr Fahda himself has not indicated that he would propose to restrict his claim to such narrower case.
2. Counsel for Bupa also referred to the "Grounds for Application", which is annexed to the June affidavit. Counsel submitted that Mr Fahda has not sought to rely on that document. Counsel accepted, however, that the "Grounds for Application" sufficiently articulate work place rights, and the taking of adverse action. Even so, counsel submitted, the "Grounds for Application" do not allege that the alleged adverse action was taken for a proscribed reason, or for reasons that included a proscribed reason as an operative factor.

1. Rule 13.13 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (GFL Rules) relevantly provides that this Court may order that a proceeding be dismissed if the Court is satisfied that "the party prosecuting the proceeding . . . has no reasonable prospect of successfully prosecuting the proceeding". Rule 13.13 is in substantially similar terms as s 31A of the Federal Court of Australia Act 1976 (Cth); and the principles governing the exercise of the power conferred by s 31A were stated by Perry J in Przybylowski v Australian Human Rights Commission (No 2):[57]

The principles governing the application of s 31A are well established and can be summarised as follows:

(1) The respondent as the moving party bears the onus of persuading the Court that the application has no reasonable prospects of succeeding: Australian Securities and Investments Commission v Cassimatis [2013] FCA 641; (2013) 220 FCR 256 (Cassimatis) at 271 [45] (Reeves J).

(2) With respect to the scope of s 31A, French CJ and Gummow J explained in Spencer v The Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 (Spencer) at [22], that the section:

... will apply to the case in which the pleadings disclose no reasonable cause of action and their deficiency is incurable. It will include the case in which there is unanswerable or unanswered evidence of a fact fatal to the pleaded case and any case which might be propounded by permissible amendment. It will include the class of case in the long-standing category of cases which are "frivolous or vexatious or an abuse of process". The application of s 31A is not, in terms, limited to those categories.

(3) Section 31A sets a lower threshold than the previous test for summary dismissal which required that the claim be "manifestly groundless" or "hopeless": Spencer at [52]-[53] (Hayne, Crennan, Kiefel and Bell JJ). Nonetheless, the discretion must still be exercised with caution (Spencer at [24] (French CJ and Gummow J) and [60] (Hayne, Crennan, Kiefel and Bell JJ)).

(4) An assessment of whether a proceeding has no reasonable prospects of success for the purposes of s 31A involves the making of value judgments in the absence of a full and complete factual matrix and argument, with the result that the provision vests a discretion in the Court: Kowalski v MMAL Staff Superannuation Fund Pty Ltd [2009] FCAFC 117; (2009) 178 FCR 401 (Kowalski) at [28] (the Court).

(5) Consistently with this, Reeves J in Cassimatis explained at [46] that:

...the determination of a summary dismissal application therefore does not require a mini-trial based upon incomplete evidence to decide whether the proceedings are likely to succeed or fail at trial. Instead, it requires a critical examination of the available materials to determine whether there is a real question of law or fact that should be decided at trial. Each application for summary judgment or summary dismissal has to be determined according to its particular circumstances. What is required is a practical judgment of the case at hand. The relevant circumstances will partly depend upon the stage which the proceedings have reached. Among other things, this will affect the materials available to the Court considering the application, for example, whether pleadings have been exchanged, or discovery of documents has occurred.

(6) To illustrate the application of these principles, Reeves J explained at [47] that the moving party is more likely to succeed if she or he demonstrates that the applicant's success relies on a question of fact that is fanciful, trifling, implausible, improbable, tenuous, or contradicted by all the available documents or evidence. Conversely, his Honour explained that, as a general principle, such an application is unlikely to succeed where, on a critical examination of all the available materials, the Court is satisfied that there appears to be a real question of fact to be determined. The latter, in his Honour's view, is more likely to be the case where the available materials include pleadings that raise factual disputes that can truly be described as significant, substantial, plausible or weighty.

1. These principles assume that an applicant has articulated in a document an intelligible and ordered set of allegations that could reasonably be recognised as stating a cause of action or a purported cause of action. It sometimes happens, however, that an applicant fails to create such a document. That would not necessarily lead to the conclusion that the applicant has no reasonable prospects of success, because it is possible that within the unintelligible or disordered allegations there lies a potential cause of action. In most cases, therefore, the Court will give the applicant an opportunity to prepare another document that contains a set of intelligible and ordered allegations. If, however, the Court is satisfied that the applicant will not be able to prepare such a document, there would be no utility in the Court giving the applicant a further opportunity to prepare a fresh document; and, for that reason, the Court may conclude that the applicant has no reasonable prospect of succeeding on any of his or her claims for relief.

APPLICATIONS FOR SUMMARY JUDGMENT OF FORM 2 AND FORM 4 PROCEEDINGS

1. Mr Fahda claims that Bupa contravened s 340(1), s 344, s 351(1), and s 352 of the FW Act. Before I consider whether Mr Fahda does not have reasonable prospects of success based on the alleged contravention of these provisions, it would be convenient to set out the relevant provisions and principles that apply to claims for contraventions of those provisions.

Elements of a cause of action based on contravention of s 340(1) of the FW Act[58]

1. The material facts an applicant must allege and prove on a cause of action based on an alleged contravention of s 340(1) of the FW Act is determined by the text contained of s 340(1), as construed by the authorities. Subsection 340(1) relevantly provides:

A person must not take adverse action against another person:

(i) has a workplace right; or

(ii) has, or has not, exercised a workplace right; or

(iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or

(b) to prevent the exercise of a workplace right by the other person.

1. Three matters must be alleged in a cause of action based on a person's having allegedly contravened s 340(1) of the FW Act.[59] First, the person must have taken "adverse action against another person". That expression is defined in a table contained in s 342(1) of the FW Act, which relevantly provides as follows:

The following table sets out circumstances in which a person takes adverse action against another person.

(b) injures the employee in his or her employment; or

(c) alters the position of the employee to the employee's prejudice; or

(d) discriminates between the employee and other employees of the employer.

1. The FW Act does not define the expression "dismisses the employee" that appears in the table contained in s 342(1) of the FW Act. The word "dismissed", however, appears in s 12 of the FW Act, after which appear the words "see section 386". Section 386 is contained in Part 3-2 of the FW Act, which deals with unfair dismissal. Subsection 386(1) provides:

A person has been dismissed if:

(a) the person's employment with his or her employer has been terminated on the employer's initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

1. I have considered elsewhere the construction of s 386(1) of the FW Act.[60]

1. The expression "injure[s] an employee in his or her employment", as used in s 298K(1) of the Workplace Relations Act 1996 (Cth), was considered by Spender J in Commonwealth Bank of Australia v Finance Sector Union of Australia. His Honour referred[61] with approval to the following passage from the reasons for judgment of Smithers J in Childs v Metropolitan Transport Trust:[62]

I cannot help thinking that "injury" refers to deprivation of one of the more immediate practical incidents of his employment, such as loss of pay or reduction in rank.

1. The expression "alters the position of the employee to the employee's prejudice" has been considered in a number of cases. In Maritime Union of Australia & Ors v Geraldton Port Authority & Ors[63] R D Nicholson J referred to the following passage from the reasons for judgment of Smithers J in Childs v Metropolitan Transport Trust:[64]

It is possible to read the word "position" in a narrow way merely as referable to the immediate incidents of day-to-day employment. But I do not see any reason why it should be so circumscribed in meaning. It seems to me that the word "position" should be read rather to refer to a man's employment position in all its attributes and that to find what those attributes are in any particular case, you look at the terms of employment, the terms of the agreement in relation to the particular employment. Fear of alteration of any of those terms or of the entitlements thereunder would be as potent a factor inhibiting an employee from operating the Act as fear of dismissal, or loss of pay or something in the nature of an immediate injury. I think therefore that cancellation or repudiation of a term of employment which has been agreed upon, cancellation or repudiation by an employer which the employee is in no position, legal or otherwise, to resist or oppose, although he may get some legal rights in relation to it, by withdrawal of a promise of secure employment in a position for an agreed term is an alteration in the employee's position within the meaning of s 5 [of the 1904 Act], and I think it takes place on the day of cancellation or repudiation of the promise that was made. From then on his position is substantially altered. The term is gone.

1. The second matter that must be alleged is that the employee against whom the employer has taken adverse action has, or has exercised, or has not exercised, a "workplace right". That expression is defined in s 341(1) of the FW Act, which relevantly provides:

A person has a workplace right if the person:

. . . .

(i) . . . .

(ii) if the person is an employee - in relation to his or her employment.

1. The Full Federal Court recently explained the notion of "complaint" for the purposes of s 341(1)(c) of the FW Act as follows:[65]

In the context of s 341(1)(c), the term "complaint" connotes an expression of discontent which seeks consideration, redress or relief from the matter about which the complainant is aggrieved: Cummins South Pacific at [13]. A complaint is more than a mere request for assistance and should state a particular grievance or finding of fault: Shea v TRUenergy at [579]‑[581]; Cummins South Pacific at [13] per Dodds‑Streeton J. Her Honour continued, at [626]‑[627], by saying that it is unnecessary for the employee to identify expressly the communication as a complaint or grievance, or to use any particular form of words. Instead, what is required is a communication which, whatever its precise form, is reasonably understood in context as an expression of grievance and which seeks, whether or expressly or implicitly, that the recipient at least take notice of, and consider, it. The characterisation of a communication as a complaint is to be determined as a matter of substance, and not of form.

The distinction between a complaint and a mere request for assistance had been made in earlier authorities: Zhang v Royal Australian Chemical Institute Inc [2005] FCAFC 99, (2005) 144 FCR 347 at [36]‑[37]; and Hill v Compass Ten Pty Ltd [2012] FCA 761, (2012) 205 FCR 94 at [48]. It is possible that some requests for assistance may be able to be characterised as "inquiries" for the purposes of s 341(1)(c) (for example, an inquiry as to whether the recipient is able to provide the requested assistance) but it was not suggested that a characterisation of that kind was appropriate in relation to any of the appellant's alleged requests or inquiries.

1. The ordinary meaning of "inquiry" is the act of seeking information about or concerning something.[66]

1. There has been a divergence of views among the Judges of the Federal Court of Australia about whether the expression "is able to" imports a requirement that an ability to make a complaint or inquiry must be "underpinned by an entitlement or right".[67] The High Court, however, appears to have settled that question in Qantas Airways Limited v Transport Workers Union of Australia, where the plurality construed "is able to" in s 341(1)(c) of the FW Act without reference to any "entitlement or right" to make a complaint or inquiry. The plurality said:[68]

The words "is able to" in s 341(1)(b) and (c), while not words of limitation,[69] necessarily indicate that circumstances have come into existence in which the person has a present capacity to exercise a power or freedom. These powers and freedoms are specifically identified in s 341(1)(b) (read with s 341(2)) and in s 341(1)(c).

1. The consequence of the construction the plurality in Qantas gave to the expression "is able to" is that it is not necessary for an applicant who relies on the workplace right provided for in s 341(1)(c)(ii) of the FW Act to allege he or she had some underlying entitlement or right to make a complaint or inquiry in relation to his or her employment; all that is required is that "circumstances have come into existence in which the [applicant] has a present capacity to exercise a relevant power or freedom", that freedom or power, in relation to s 341(1)(c)(ii), being the freedom the applicant has to make a complaint or inquiry in relation to his or her employment. This appears to be the view Rares ACJ and Katzmann J expressed in Construction, Forestry, Maritime, Mining and Energy Union v Quirk,[70] although Colvin J may have held a different view.[71]

1. In Henry v Leighton Admin Services Pty Ltd I considered the construction of the expression "in relation to" as used in s 341(1)(c)(ii) of the FW Act, and concluded that a person will make a complaint or inquiry "in relation to" his or her employment if the complaint is about his or her employment rights or obligations, or "about a subject that may prejudice the person in his or her employment".[72]

Adverse action because of exercise of workplace right

1. The third matter that must be alleged in a cause of action based on an alleged contravention of s 340(1) of the FW Act by an employer is that the employer has taken the adverse action for a particular reason, or for reasons that included a particular reason, namely, the existence of, or exercise of, or the failure to exercise, a workplace right.[73] That requirement arises from the presence of the word "because": s 340(1) of the FW Act prohibits a person from taking adverse action "because" a person has a "workplace right", or "because" the person has exercised, or has not exercised, or proposes to exercise, or proposes not to exercise, such a right (proscribed reasons). Further, where it is alleged a proscribed reason is one of a number of reasons for which the employer took adverse action, the proscribed reason must be "a "substantial and operative factor" as to constitute a "reason", potentially amongst many reasons",[74] or must be an "operative or immediate reason for the action".[75]
2. An important aspect of determining whether in any given case a person has taken adverse action for a proscribed reason, that is, "because" of one or more of the matters specified in s 340(1) of the FW Act, is s 361(1) of that Act. That subsection provides:

If:

(a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and

(b) taking that action for that reason or with that intent would constitute a contravention of this Part;

it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.

1. The effect of s 361 of the FW Act is that the onus lies on the employer to prove, and therefore to allege, that, if the employer took adverse action, the employer did not take it for a proscribed reason or for reasons that included a proscribed reason as a substantial and operative factor; or, stated positively, the employer must allege and prove he or she took the adverse action for a single reason that was not a proscribed reason, or for reasons that did not include a proscribed reason as a substantial and operative factor in the employer's taking the adverse action. Before an applicant can rely on s 361 of the FW Act, however, two conditions must be satisfied. First, the applicant "must precisely and distinctly identify the alleged reason, or the alleged intent, for the contravening conduct";[76] and, second, the applicant must allege that the taking of "the alleged action, for the alleged reason or with the alleged intent (or both), "would constitute a contravention of that Part"".[77]

Pleadings or alleged contraventions of s 340(1) and other civil remedy provisions of the FW Act

1. It would be appropriate at this point to refer to what the Full Federal Court, in Monash Health v Singh, said about the degree of precision with which an applicant who wishes to rely on s 360 and s 361 of the FW Act must allege the claims it makes. The Full Federal Court said as follows:[78]

(1) To assert that "a party is to be held to its pleadings" or that the "scope of the trial is to be determined by the pleadings, and only the pleadings" is misconceived. The course of the proceedings is in the control of the Court in the attainment of a just outcome. Mere infelicity of drafting will rarely be allowed to defeat a case on its merits if the merits of the case have been made apparent on the evidence without unfairness to the other party: Betfair Pty Ltd v Racing New South Wales [2010] FCAFC 133; 189 FCR 356 at [51], [55]; Australian Federation of Air Pilots v Regional Express Holdings Limited [2021] FCAFC 226; 290 FCR 239 at [141]-[142] per Bromberg, Kerr and Wheelahan JJ; BHP Coal at [60]-[61].

(2) But allegations of contravention of the general protections provisions are inherently serious. As a matter of fairness, such a claim should be pleaded with sufficient precision for a respondent to know the case against it: Celand per Bromberg at [102], citing BHP Coal at [63]-[65]. Some precision is required so that they do not involve a "broad enquiry as to whether the applicant has been subjected to a procedurally or substantively unfair outcome" (Ermel v DuluxGroup (Australia) Pty Ltd (No 2) [2015] FCA 17 at [48]; Celand at [100]) and where the "crucial issue" is the causal relationship between the adverse action and one or more of the factors mentioned in the various provisions of Pt 3-1.

(3) Despite ambiguity or infelicity in an applicant's pleading, however, no procedural unfairness may arise where the respondent has meaningfully engaged with the pleading in its defence and the trial proceeded in a way, by reason of the applicant's opening, the manner in which the hearing was conducted and defended, and it can reasonably be inferred that the respondent understood the applicant's case against them: BHP Coal at [65]-[77].

(4) The level of precision required in relation to pleadings in General Protections claims is informed by the reasoning of the Full Court of Hall at [15]-[19]: Two pre-conditions must be met before the presumption under s 361 arises: first, the particular reason or the particular intent for the contravening action must be alleged in the application (s 361(1)(a)); and secondly that "taking that action for that reason or with that intent would constitute a contravention of this Part" (emphasis added) (s 361(1)(b)). As a consequence, in a proceeding of this kind conducted on pleadings an applicant is required to "plead in his or her statement of claim all the material facts concerning the contraventions alleged against the respondent": Hall at [19]. A pleading will be deficient where an applicant has failed to precisely and distinctly allege the particular reason or any particular intent: Hall at [40].

(5) The nature of a general protections proceeding does not vary according to whether it is instituted before this Court or in the Federal Circuit and Family Court of Australia (FCFCoA). The fact that the objects of the FCFCoA include operating "as informally as possible" also does not change its nature. The proceeding is one for the recovery of a pecuniary penalty and thus penal in nature, such that where a case proceeds by pleadings, the rules of pleading should be applied: Sabapathy at [41]-[42].

(6) What is important is not the medium by which the allegations are made but whether the allegations are, in fact, made. Where proceedings in this Court or in the FCFCoA do not proceed by way of pleadings, what comprises the allegations may be identified by reference to any filed application or concise statement but may be supplemented in other ways, such as by making an order for pleadings, or particulars, or by statements of facts, issues and contentions, or by the written opening submissions filed in advance of the hearing so as to expose the issues: Regional Express at [139]-[142].

Elements of a cause of action based on contravention of s 344 of the FW Act

1. For reasons that will become apparent letter, I need only set out the text of s 344 of the FW Act, which is as follows:

An employer must not exert undue influence or undue pressure on an employee in relation to a decision by the to:

(a) make, or not make, an agreement or arrangement under the National Employment Standards; or

(b) make, or not make, an agreement or arrangement under a term of a modern award or enterprise agreement that is permitted to be included in the award or agreement under subsection 55(2); or

(c) agree to, or terminate, an individual flexibility arrangement; or

(e) agree, or not agree, to a deduction from amounts payable to the employee in relation to the performance of work.

Elements of a cause of action based on contravention of s 351(1) of the FW Act

1. Section 351 of the FW Act relevantly provides as follows:

(1) An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person's race, colour, sex, sexual orientation, breastfeeding, gender identity, intersex status, age, physical or mental disability, marital status, family or carer's responsibilities, subjection to family and domestic violence, pregnancy, religion, political opinion, national extraction or social origin.

(2) However, subsection (1) does not apply to action that is:

(a) not unlawful under any anti‑discrimination law in force in the place where the action is taken; or

(b) taken because of the inherent requirements of the particular position concerned; or

(c) if the action is taken against a staff member of an institution conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed - taken

(i) in good faith; and

(ii) to avoid injury to the religious susceptibilities of adherents of that religion or creed.

1. The elements of a cause of action based on a contravention of s 351(1) of the FW Act are as follows:

(a) The employer must take "adverse action" against the employee. "Adverse action" has the same meaning as that expression appears in s 342 of the FW Act.

(b) The employer took the adverse action "because" of one or more of the matters s 351(1) identifies. "Because" calls for the same analysis as applies to "because" as it appears in s 340(1) of the FW Act, including the application of s 361(1) of the FW Act.

Elements of a cause of action based on contravention of s 352 of the FW Act

1. For reasons that will become apparent letter, I need only set out the text of s 352 of the FW Act, which is as follows:

An employer must not dismiss an employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the regulations.

Whether Mr Fahda does not have reasonable prospects of succeeding based on alleged contraventions of s 340(1), s 344, s 351(1), and or s 352 of the FW Act

1. I will consider this question, first, by reference to the ASC and the Further ASC; and second, by reference to the evidence on which Mr Fahda relies.

1. In paragraph 3 of the ASC Mr Fahda alleges Bupa contravened s 340 and s 352, s 351, and s 344 of the FW Act; and in paragraph 4, Mr Fahda makes the following allegations:

(a) Mr Fahda exercised his workplace rights by filing internal grievances through "SPEAK UPs". Mr Fahda filed multiple speaks ups in November and December 2022.

(b) Mr Fahda did not disclose to the Bupa retention team that he filed speak ups; but he did discuss it with "People Partners and Employee Relations", on a strictly confidential basis. Mr Fahda was "subjected with intense cyber bullying "a form of retaliation and "pcom" monitoring as he seeks help from colleagues, distress calls"; and he was "subjected with snap meetings, crash meetings via break out session when his seen interacting with colleagues, especially days surrounding the SPEAK UPS [sic] and delivering the disciplinary outcome meetings".

(c) On 28 November 2022 Ms Awwad, in "a controlling rage, created a break out chat". That resulted in a problem in the relationship between Mr Fahda and a Ms F who had been offering Mr Fahda support. Ms Awwad's conduct constitutes a "bullying tactic" which she deployed "to further isolate" Mr Fahda, and "discourage colleagues from connecting and supporting each other even for a minute".

(d) While exercising his rights and accessing the "BUPA grievance tool", Mr Fahda "was denied fair and equal opportunities, and was set apart from the rest of the team".

(e) Ms Awwad denied Mr Fahda extra training "and would be fixated on generating the Non Adherence Investigation outcome". At no time did Ms Awwad attempt to make Mr Fahda wanted, "and she would deploy unorthodox methods to make him feel unwelcomed. Forcing a resignation.. [sic] controlling his workplace environment section s. 343 coercion".

(f) Ms Gloyne "was also siding with [Ms Awwad] and conveying a customer obsessed front with no focus on" Mr Fahda's "wellbeing"; and this constituted further adverse action because Mr Fahda "is entitled to the benefit of the workplace right/and seek services from HR to balance the scales of Leadership and Subordinate".

(g) "HR would not place any improvement plans in place and/or immediately assign him a new Team Leader or at least a coach".

(h) Mr Fahda experienced adverse action on 12 December 2022 when in relation to Mr Fahda's call with a customer Ms Mahon created a "SNAP [sic] break out session" asking "WHY ARE YOU TOO SLOW [sic]".

1. In paragraph 3 of the Further ASC, Mr Fahda alleges that Bupa contravened s 342, s 341, and s 351 of the FW Act; and in paragraph 4 Mr Fahda alleges matters that include the following:

(a) While "applying for the Stop Bullying Application", Mr Fahda "suffered multiple instances of adverse action, not limited to laptop lockout, attempts to access passwords and denied safe workplace environment, which was afforded to remaining of his cohorts in the retention team" [sic].

(b) Mr Fahda was deliberately locked out of his Bupa laptop, one day after "a F72 Stop Bully conference held by Deputy President Easton". That occurred on 8 February 2023.

(c) From November 2022 to February 2023, Mr Fahda expressed concerns to Ms Oberthur in relation to "excessive disciplinary action, discrimination in team activities, lock outs, alteration of performance sales results and contamination of team transfer where no fresh start was offered".

(d) Bupa's "leadership conspired" against Mr Fahda and "managed him out of BUPA through a series of hostile/adverse events".

(e) While participating "[i]n Q.A. investigation process, the applicant made numerous request [sic] for BUPA wellbeing specialist to attend to his needs during a difficult time".

(f) Mr Fahda requested a thorough assessment on why "his retains and sales data was being negatively meddled with, affecting his sales targets and incentives, with evidence of such adverse action supplied to investigators".

(g) For Ms Awwad "to alter results and affect the applicants ability to pass probation is a breach of section 351 discrimination as other team mates were not targeted in such manner and [Ms Awwad's] actions was a form of retaliation of general protection section 342".

(h) Under the heading of "Particulars", Mr Fahda refers to emails and other communications with Ms Oberthur.

(i) On 5 January 2023 Mr Fahda wrote to "Employee Relations and wanted assurances he will be job secure in the coming months and for the month of February 2023".

(j) On 17 February 2023 Bupa terminated Mr Fahda's employment, and "this is an alleged breach of general protections. Section 342".

1. As is apparent from my summary of their contents, the ASC and the Further ASC largely consist of conclusory statements that are not supported by alleged facts. For example, it is asserted that:

(a) Mr Fahda "suffered multiple instances of adverse action", but the instances are not identified by reference to time, date or persons involved;

(b) Bupa's "leadership conspired" and "managed [Mr Fahda] out of [Bupa] through series of hostile/adverse events", but the acts that constituted the conspiracy, the persons who were party to the conspiracy, the acts that constituted the conspiracy, or the date the acts occurred, are not identified;

(c) Ms Awwad altered results, but the results Ms Awwad is alleged to have altered are not identified, nor the date on which it is alleged she did so;

(d) team members were not targeted as Mr Fahda had been targeted, but the acts that are alleged to constitute the targeting of Mr Fahda are not identified, nor are the employees whom it is alleged were not targeted;

(e) Mr Fahda "filed multiple speak ups", but does not identify each of the speak ups Mr Fahda alleges he filed, or the date on which he filed them;

(f) Mr Fahda was denied "fair and equal opportunities", but he does not identify the opportunities Bupa denied him, the person or persons who denied them, or the facts that constituted the denial of such opportunities; and

(g) Ms Awwad applied "unorthodox methods", but Mr Fahda does not identify the conduct that is alleged to manifest unorthodox methods, and the matters on which Mr Fahda relies for asserting those methods were unorthodox.

1. There is a second difficulty. Although the ASC and the Further ASC assert in conclusory terms the taking of adverse action, neither document identifies the person or persons it is alleged took the adverse action; or attribute to that person as a reason for that person taking the adverse action any of the acts the ASC or Further ASC asserts constituted the exercise of a workplace right.
2. In the light of these difficulties neither the ASC nor the Further ASC is a document that is capable of fairly conveying to Bupa the case Mr Fahda intends to present based on alleged contraventions of s 340(1), s 344, s 351(1) or s 352 of the FW Act. If I were satisfied that there would be no reasonable prospect that Mr Fahda could reformulate the claims he purports to make in the ASC or the Further ASC in a way that could reasonably convey to Bupa the case it would need to meet, it would follow that Mr Fahda would not have reasonable prospects of succeeding on his claims based on the FW Act. That would be so simply because I would be satisfied that Mr Fahda is unable to articulate any reasonably arguable cause or causes of action based on contraventions of s 340(1), s 344, s 351(1), or s 352 of the FW Act.
3. Does Mr Fahda have no reasonable prospects of being able to articulate a reasonably arguable cause of action for contraventions of the FW Act? I am satisfied that Mr Fahda does not have any such reasonable prospects.

(a) First, Mr Fahda has had ample opportunity to formulate his claims. These include the ASC and the Further ASC.

(b) Second, the oral submissions Mr Fahda made at the hearing reflected the difficulties from which the ASC and Further ASC suffer. Despite attempts I made to direct Mr Fahda's attention to specific matters, Mr Fahda's submissions largely consisted of conclusory assertions.

(c) Third, there is in evidence the Grounds for Application which appears to have been prepared by or with the assistance of a lawyer and which gets near to articulating a reasonable cause of action based on a contravention of s 340(1) of the FW Act. As counsel for Bupa noted, however, Mr Fahda has not indicated that he intends to rely on it; and it is not open to me to proceed on the basis that Mr Fahda intends to rely on the Grounds for Application. Even if Mr Fahda informed me that he did intend to rely on that document, I could not be satisfied that Mr Fahda would restrict his case to the matters alleged in the Grounds for Application.

1. For these reasons, I am satisfied that Mr Fahda does not have reasonable prospects of succeeding on his causes of action based on alleged contraventions of s 340(1), s 344, s 351(1), or s 352 of the FW Act, or s 343 of the FW Act (to which the ASC, but not the Further ASC, refers).

No reasonable prospects assuming Mr Fahda relies on Grounds for Application?

1. I will assume, however, contrary to what I have concluded, that Mr Fahda will seek to proceed on the basis of the Grounds for Application; and, moreover, he will seek to amend the Grounds for Application to allege that the adverse action the Grounds for Application identify was taken because Mr Fahda exercised the workplace rights the Grounds for Application identify. Would Mr Fahda, in those circumstances, have no reasonable prospects of success? To determine that question, it will be necessary, first, to refer to the Grounds for Application.

(a) On 13 December 2022 Mr Fahda made a SBOA to the FWC.

(b) In making the SBOA Mr Fahda exercised a workplace right pursuant to s 341(1)(c)(i) of the FW Act.

(c) The SBOA was listed for a telephone conference on 20 February 2023 before the FWC.

(d) On 15 December 2022 Mr Fahda sent an email to Bupa requesting an adjustment to his work to provide for the needs of his disability.

(e) The email referred to in (d) constituted the exercise of a workplace right within the meaning of s 341(1)(c)(ii) of the FW Act.

(f) Since making the SBOA in December 2022 Bupa increased monitoring Mr Fahda's work computer.

(g) Mr Fahda began to notice when he would log out of his computer that a user "PCMon" would have control of the device; and Mr Fahda also noticed documents began being moved and he had lost control of some software. This monitoring put additional burdens on his computer, crashing the computer regularly and slowing down his work.

(h) The additional monitoring referred to in (g) constituted adverse action because it injured Mr Fahda in his employment, within the meaning of s 342(1)(b).

(i) Since Mr Fahda became aware of the increased monitoring he made regular enquiries with IT staff regarding the increased monitoring; and by so doing, Mr Fahda exercised a workplace right within the meaning of s 341(1)(c)(ii) of the FW Act.

(j) On 17 February 2023 Bupa took adverse action against Mr Fahda by terminating his employment.

1. Even if Mr Fahda were to rely on the Grounds for Application and, moreover, seek to amend it by alleging that Bupa took the adverse action it alleges because Mr Fahda had taken steps that constitute the exercise by him of workplace rights, I am satisfied that Mr Fahda would not have reasonable prospects of success; and that would be because I am satisfied that Mr Fahda would not have a reasonable prospect of Bupa not discharging the burden that would lie on it to prove that the reasons for which it decided to terminate Mr Fahda's employment are the reasons contained in the email Bupa sent to Mr Fahda on 17 February 2023 confirming that his employment had been terminated.

(a) First, the documentary evidence shows that throughout the course of his employment, Bupa communicated to Mr Fahda what it considered to be failures by him in the performance of his position of outbound retention advisor. Thus, on 10 October 2022, just over one month after Mr Fahda commenced his employment with Bupa, Ms Awwad informed Mr Fahda in writing that she considered Mr Fahda had failed to comply with Bupa's policies. On 19 October 2022 Ms Awwad had a catch up with Mr Fahda about his "schedule adherence". And on 17 November 2022 Ms Awwad met with Mr Fahda about his not adhering to those schedules. That resulted in Bupa issuing a written warning to Mr Fahda on 5 December 2022, in which Bupa stated that Mr Fahda exhibited "a pattern of unsatisfactory conduct and does not meet the expectations of your role and is not acceptable at Bupa". All this occurred before Mr Fahda made the SBOA referred to in the Grounds for Application; and before 15 December 2022, being the date on which the Grounds for Application allege Mr Fahda requested adjustments for his alleged medical conditions.

(b) Second, there is evidence of at least one instance where Ms Mahon informed Mr Fahda that she considered his performance to be inadequate. That occurring at 3:45 pm on 12 December 2022 when Ms Mahon created a break out chat and asked Mr Fahda why he was taking so long with his after-call work. This occurred on the day before Mr Fahda lodged the SBOA.

(c) Third, the evidence reveals, and Mr Fahda does not dispute, that his performance as an outbound retention advisor was assessed against key performance indicators; and, moreover, Ms Awwad and, later, Mr Thomas, informed Mr Fahda that he was not meeting them. Thus, on 15 December 2022 Ms Awwad told Mr Fahda that he was not meeting his overall targets; and on 9 February 2023 Mr Fahda sent to Mr Thomas an email after his performance review on that day in which he stated he needed "improvement on ACW, Answer Rate and Jarvis".

(d) Fourth, Mr Fahda himself recognised he was having difficulties performing his role as an outbound retention advisor. He acknowledged he was having difficulties as early as 19 October 2022 when, at his catch up with Ms Awwad, Mr Fahda brought up what he said was his medical condition. Mr Fahda asked Ms Awwad that be given the benefit of the doubt if he was late some mornings. At his performance review meeting on 15 December 2022, Mr Fahda expressed his "struggles on my roles and many investigatory meetings impeding my results". He said he wanted permanent adjustments using "distress codes on an ad hoc basis", "additional allowances of distress to be used during break times with understanding of 10-15 minutes", and "understanding from the business that" Mr Fahda may need to log off for the remainder of the day, should he require it. And in the medical certificate issued on 24 January 2023, Dr Kobra stated that Mr Fahda "has medical condition and needs 15 minutes break, 2 times during working hour", and requesting that Mr Fahda be allowed "to have a break,[sic] each of them for 15 minutes from 24/01/2023 to 24/02/2023". That Mr Fahda had difficulties performing his role is made even clearer in the claims Mr Fahda makes in the Human Rights proceeding (to which I refer later).

(e) Fifth, Bupa replaced Ms Awwad with Mr Thomas as Mr Fahda's team leader to accommodate Mr Fahda's complaint that he could not work with Ms Awwad as his team leader. This occurred after Mr Fahda lodged his SBOA. Moreover, Bupa continued to conduct performance reviews of Mr Fahda.

(f) Sixth, the evidence unequivocally shows that Bupa sought to engage with Mr Fahda's claims about his medical condition. At the catch up of 19 October 2022 Ms Awwad asked Mr Fahda "what we could do for you from a support perspective"; and in the 25 October 2022 catch up Ms Awwad offered Mr Fahda two options. Further, in January 2023 Bupa sought to obtain medical evidence from Mr Fahda that would reveal the adjustments Mr Fahda's condition would require to be made, with a view to determining whether the adjustments, if made, would be consistent with the inherent requirements of the role of outbound retention advisor Mr Fahda had been employed to perform.

(g) Seventh, Mr Fahda does not appear to dispute the statements contained in Bupa's email of 17 February 2023 concerning his performance; and in particular, the statement that Mr Fahda's "performance metrics" indicated that he had not demonstrated consistent improvement across his performance indicators over the past five and half months, despite being provided additional coaching and significant opportunities for learning and growth within the team. It is the case that in his account of the meeting of 17 February 2023 Mr Fahda says that he asserted that he was not given an adequate time or opportunity to respond to Ms Tilyard's concerns (Mr Fahda had asked for one week), and that his performance "was above average despite the bullying". There is, however, nothing in the material on which Mr Fahda relies that is reasonably capable of casting any doubt on the statements contained in the email sent on 17 February 2023 that Mr Fahda had not demonstrated satisfactory performance against key performance indicators.

1. Finally, I should refer to Mr Fahda's assertion that the complaints he made by use of the "Speak Up" facility were disclosed to persons other than Ms Oberthur. There is no evidence that is reasonably capable of suggesting that Ms Oberthur disclosed to others Mr Fahda's communications with her, or that any person within Bupa who was involved in the decision to terminate his employment was aware of Mr Fahda's having made complaints through Speak Up.

1. I am satisfied that Mr Fahda does not have a reasonable prospect of succeeding on any of his claims for relief under the FW Act ; and that is because Mr Fahda would not have a reasonable prospect of Bupa not being able to discharge the burden that lies on it that the reasons for which it decided to terminate Mr Fahda's employment are the reasons stated in Bupa's letter dated 17 February 2023. Those reasons are not proscribed reasons for the purposes of s 340(1), s 351, or s 352 of the FW Act.
2. As for the alleged contravention of s 344, neither the facts asserted in the ASC and the Further ASC, nor any of the evidence, is capable of supporting a contravention of s 344 of the FW Act.

APPLICATION FOR SUMMARY DISMISSAL OF HUMAN RIGHTS PROCEEDING

1. I will begin by setting out the claims Mr Fahda makes in the originating application; after which I will set out the claims Mr Fahda makes in the Further ASC. (Mr Fahda does not make any allegations in the ASC in relation to his claims based on discrimination.[79])

1. In the originating application Mr Fahda claims he suffers from a disability, namely, "severe colitis/Chron[']s/Anxiety"; and Mr Fahda claims he was discriminated against because of his disability as follows:

(a) Excessive meetings, unreasonable demands to perform set tasks that "is not in tune with my bodily functions when I'm in relapse".

(b) Ms Awwad and Ms Mahon pulled Mr Fahda aside from the rest of his team to discipline him and degrade, cross-examine, and belittle Mr Fahda's efforts and ability to turn up to work despite the discrimination.

(c) The meeting turned into interrogations linking it to Mr Fahda's "protected characteristics, and inabilities".

(d) On 10 October 2022 Mr Fahda was singled out from the rest of his team and his team leader made untoward comments and commenced proceedings against Mr Fahda for not being able to remain on the phone at all times despite his "medical relapse", his symptoms, and their effects. Bupa followed no protocol.

(e) On 19 and 25 October 2022 Mr Fahda had a snap meeting during which Ms Awwad "would constructively find reasons/apply methods to force upon me a dismissal/resignation because of my alleged lack of ability to adhere to "business processes and procedures"". Bupa was obliged to offer Mr Fahda adjustments, and not pull him into sporadic meetings.

(f) Bupa imposed conditions on how Mr Fahda should perform his job that were unreasonable and with which he could not comply because of his disability. These included setting strict times for rest breaks, measuring performance based on time on the phone to clients, length of breaks, number of phone calls taken per day, and high targets set.

(g) During October, November, and December 2022 Ms Awwad and Ms Mahon made attempts to put in place temporary adjustments, but made untoward comments to Mr Fahda, and inferences to Mr Fahda's disability being a burden to Bupa.

(h) Bupa requested the release of medical records from Mr Fahda's general practitioner.

(i) Bupa offered Mr Fahda only two wellbeing sessions, and did not offer Mr Fahda a mental health specialist or wellbeing specialist to help Mr Fahda come to terms with his realities at Bupa.

(j) Bupa never put in place a permanent reasonable medical adjustment, but Mr Fahda was thereafter criticised for not being able to perform his role and achieve his KPIs.

(k) Bupa did not allow Mr Fahda time to gather documents from his specialist by 20 February 2023, even though Mr Fahda's disability advocate requested an extension of time.

(l) Mr Fahda was subjected to indirect disability discrimination in many areas of his work, the most severe of which was having a high "ACW", namely, "After Call Work".

(m) Ms Tilyard had a high expectation of Mr Fahda during his vulnerable states of his employment, while on probation, despite being subjected to monthly discrimination.

(n) Mr Fahda's team was made up predominantly "of all female majority", where Mr Fahda's "TL would openly advocate for feminism in our support chat".

(o) Mr Fahda was one of 3 to 5 employees with Arabic background in the Bupa Retention Centre.

1. In the Further ASC Mr Fahda makes a number of allegations, and refers to a number of communications. These include the following:

(a) Mr Fahda "advised and made reference to medical adjustments during second round interviews", and adverse comments were made by "Team Leader Sapna Ved casting doubt about Mr Fahda's ability to handle 50 to 70 calls per day"; and stating that Mr Fahda would not make the next stages in the recruitment process.

(b) On 14 November 2022 Mr Fahda sent an email to Ms Gloyne requesting follow up meeting to "discuss Allowances and how its applied to the softphone". Ms Gloyne responded by email asking that Mr Fahda elaborate what he meant, and suggesting that that was something that was best addressed with Ms Awwad.

(c) In December 2022 and January 2023 Mr Fahda escalated his request for reasonable medical adjustments.

(d) On "23-25 January 2023" Mr Fahda "partook in a gruelling teams meeting" with Mr Thomas "about the importance of answering all customer inbound calls and passing privacy, 3 ID check". Mr Fahda asked Mr Thomas whether he was "brief by HR or Employee Relations" that Mr Fahda had requested medical adjustments", in response to which Mr Thomas said he had no idea Mr Fahda "suffered from a chronic medical condition".

1. At pages 12 and 13 of the Further ASC, the following is stated (errors in original):

The applicant alleged BUPA contravened the Commonwealth Disability Discrimination Act of 1992, which states that employers are obliged to make 'reasonable adjustments' to prevent discrimination. Bupa had no intention to offer the applicant any form of permanent adjustments and to allow him the space, time, safety to perform well in the role. 'reasonable adjustments' could have been made but the applicant was managed out of the company. The bodily function of the applicant was a burden to BUPA and high expectation was set/ expected kpis and performance markers was unreasonable, the applicant had exhausted all avenues In seeking adjustments to be afforded a fair workplace. The Applicant did partake in the functional capacity assessment to assess ability to perform his duties in the workplace and the he was always open, honest and transparent in disclosing information , even though it would later be proven to be to his detriment and downfall. Due to the mounting pressure and overwhelming experience at BUPA not limited to discrimation section 351 and adverse action 341, 342, the applicant sustained an injury, major relapse that would later alter the applicant quality of life, motiavtuon to have a promising career, and negatively effecting his physical and mental state, most important trust In organisations and people. The principal failing of the employer BUPA in this case was its failure to provide 'reasonable adjustments' to accommodate the employee's injury. No final assessment was generated. No unjustifiable hardship was shown to the applicant. There was no financial disadvantage to BUPA. There was no evident shown its core business function was negatively affected by offering medical adjustments to the Applicant . Refer to No: NSD1027/2023 & SYG 1900 of 2023 The applicant was able to perform essential parts of the job, BUPA should of provided any services or facilities to help do the job there was no hardship present to BUPA HI PTY LTD in doing so, the applicant did request rest breaks, for it to not affect his performance, kpis, and overall targets, he did request to have breaks at particular times to take medication or attend to his symptoms or remedy malnourishment dehydration. Under the Disability Discrimination Act 1992, workplaces must provide workplace adjustments if requested. Attending to BUPAs medical request forms was at times draining, overwhelming side-tracking the applicant from performing the core functions or 'inherent requirements', made to feel like his a problem employee, as BUPA created this narrative since onboarding, at times he was denied access to opportunities, participate in the workplace activities like cover review , and did not have equal access to opportunities like his colleagues, for his own professional development, promotions and working conditions ; not limited to incentives and bonuses, to further encourage him to attending work and feel like a valued part of BUPA retention team. Refer to No: NSD1027/2023 & SYG 1900 of 2023 (c)

Elements of cause of action under s 15(2) of the DD Act

1. The DD Act identifies various types of conduct (proscribed conduct) that constitute unlawful discrimination by one person against another person on the ground of "disability". The various classes of proscribed conduct are specified in Part 2 of the DD Act. Although Mr Fahda does not identify the provision or provisions of the DD Act he alleges Bupa failed to comply with, it may safely be assumed that Mr Fahda relies on s 15(2) of the DD Act, which provides:

It is unlawful for an employer or a person acting or purporting to act on behalf of an employer to discriminate against an employee on the ground of the employee's disability:

(a) in the terms or conditions of employment that the employer affords the employee; or

(b) by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment; or

(c) by dismissing the employee; or

(d) by subjecting the employee to any other detriment.

1. Sections 5 and 6 of the DD Act define four types of conduct that constitute discrimination.[80]

For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if, because of the disability, the discriminator treats, or proposes to treat, the aggrieved person less favourably than the discriminator would treat a person without the disability in circumstances that are not materially different.

1. An essential element of s 5(1) of the DD Act is that the person with a disability (that is, "the aggrieved person") has been treated "less favourably". Whether a person has been treated less favourably requires the construction of a "notional person" against which the treatment of the aggrieved person can be compared.[81] Such notional person is often referred to as the "comparator". How the appropriate comparator is to be constructed was one of the issues the High Court considered in Purvis v State of New South Wales (Department of Education & Training).[82]
2. In Purvis, the aggrieved person, a student, suffered from a disorder that caused him to act violently towards students and teachers. He alleged the school discriminated against him because of his disability, by suspending and later excluding him from the school because of his violent behaviour. One issue was whether the violence the aggrieved person manifested in the circumstances that gave rise to the alleged discriminating conduct should be attributed to the comparator. The majority held that the comparator ought to have included the violent behaviour the aggrieved person manifested in the circumstances of the alleged discriminatory conduct.
3. There are two reasons for judgment to consider. The first is that of Gummow, Hayne, and Heydon JJ (with whose reasons on this point Callinan J agreed).[83] Their Honours said that, where the alleged discriminating conduct has taken place, the actual circumstances of the conduct must be identified. What must then be compared with those circumstances is what the alleged discriminator would have done in relation to a person who does not have the disability in "those" circumstances.[84] Their Honours said:[85]

The circumstances referred to in s 5(1) are all of the objective features which surround the actual or intended treatment of the disabled person by the person referred to in the provision as the "discriminator". It would be artificial to exclude (and there is no basis in the text of the provision for excluding) from consideration some of these circumstances because they are identified as being connected with that person's disability. There may be cases in which identifying the circumstances of intended treatment is not easy. But where it is alleged that a disabled person has been treated disadvantageously, those difficulties do not intrude. All of the circumstances of the impugned conduct can be identified and that is what s 5(1) requires. Once the circumstances of the treatment or intended treatment have been identified, a comparison must be made with the treatment that would have been given to a person without the disability in circumstances that were the same or were not materially different.

1. The second judgment to consider is that of Gleeson CJ. His Honour held that the claim of discrimination in that case was based on a fallacious assumption that, because the complainant's violent behaviour was due to a disorder, the relevant comparison was between the complainant manifesting violent behaviour and a person who did not manifest the violent behaviour. That was so because the "law does not regard all bad behaviour as disturbed behaviour; and it does not regard all violent people as disabled".[86] What the DD Act required was "a comparison with the treatment that would be given, in the same circumstances, to a pupil whose behaviour was not disturbed behaviour resulting from a disorder".[87]

1. Causation constitutes an element of the definition of "discrimination" given by s 5(1); that flows from s 5(1) requiring that the person with the disability has been treated less favourably than a person without the disability "because" of the person's disability. The requirement of causation is repeated in s 29 of the DD Act, which provides for discrimination "on the ground of" a person's disability. This points to the requirement of a causal connection between the alleged discriminatory conduct, and the reasons for which the alleged discriminator has engaged in the discriminatory conduct.
2. This requirement is not only inherent in the meaning of the words "on the ground of"; it is supported by s 10 of DD Act, which provides:

(a) an act is done for 2 or more reasons; and

(b) one or more reasons is the disability of a person (whether or not it is the dominant or a substantial reason for doing the act);

Then, for the purposes of this Act, the acts is taken to be done for that reason.

1. The word "disability", in relation to a person, is defined in s 4 to mean:

(a) total or partial loss of the person's bodily or mental functions; or

(b) total or partial loss of a part of the body; or

(c) the presence in the body of organisms causing disease or illness; or

(d) the presence in the body of organisms capable of causing disease or illness; or

(e) the malfunction, malformation or disfigurement of a part of the person's body; or

(f) a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction; or

(g) a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour;

and includes a disability that:

(h) presently exists; or

(i) previously existed but no longer exists; or

(j) may exist in the future (including because of a genetic predisposition to that disability); or

(k) is imputed to a person.

To avoid doubt, a disability that is otherwise covered by this definition includes behaviour that is a symptom or manifestation of the disability.

1. The second type of discrimination is defined in s 5(2) of the DD Act which provides:

For the purposes of this Act, a person (the discriminator) also discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:

(a) the discriminator does not make, or proposes not to make, reasonable adjustments for the person; and

(b) the failure to make the reasonable adjustments has, or would have, the effect that the aggrieved person is, because of the disability, treated less favourably than a person without the disability would be treated in circumstances that are not materially different.

1. Subsection 5(2) must be read with s 5(3), which provides:

For the purposes of this section, circumstances are not materially different because of the fact that, because of the disability, the aggrieved person requires adjustments.

1. There are a number of observations that may be made about s 5(2) of the DD Act.

(a) First, the conduct that constitutes the discrimination the subsection identifies is the discriminator not making, or proposing not to make, reasonable adjustments. That presupposes that the discriminator has been made aware that adjustments are available, or are claimed to be available, for the aggrieved person, but, notwithstanding that awareness, the discriminator does not provide the adjustments, or proposes not to provide them. It also presupposes that, once aware that adjustments are available, or are claimed to be available, the discriminator would be afforded a reasonable time to determine whether the adjustments are necessary (that is, it is an adjustment that is rendered necessary because of the aggrieved person's disability), and, if so, whether they can be made or can reasonably be made.

(b) Second, although the DD Act defines the expression "reasonable adjustment" (which I will consider shortly), the DD Act does not define the word "adjustment". It therefore bears its ordinary meaning. To "adjust" means "to arrange, alter, or modify (a thing) in relation to something else so as to meet a standard, suit a purpose, or achieve a desired result";[88] and it may mean steps that may be taken to arrange or alter or modify a thing in a particular way or for a particular purpose; or the arrangements, alterations, or modifications that have been effected by the acts that constitute the adjustment. As used in s 5(2) of the DD Act, therefore, "adjustments" may be taken to mean the arrangements, alterations, or modifications the alleged discriminator has decided not to make or has proposed not to make.

(c) Third, the adjustments, namely, the arrangements, alterations or modifications the alleged discriminator has decided not to make or has proposed not to make, must be adjustments that, if made, would have been made "for" the aggrieved person.

(d) Fourth, s 5(2) of the DD Act does not identify the things that must be the subject of the adjustment. It is reasonably clear, however, that these are arrangements, alterations, or modifications which, if made for the aggrieved person, will eliminate the aggrieved person's being otherwise treated less favourably because of his or her disability. What these arrangements, alterations, or modifications may be depends on the circumstances of the case. In the context of employment where an employee has a disability, whether there are any adjustments that may be made is to be determined by taking the following steps:

(i) Identify the tasks associated with the proper performance of the employment under consideration (Required Tasks).

(ii) Identify the respects in which a person with a disability cannot, because of his or her disability, perform the Required Tasks.

(iii) Ask whether there are any arrangements, alterations, or modifications that can be made which, if made, will enable the person with a disability to perform the Required Tasks.

If (iii) is answered in the affirmative, the adjustments will consist of the arrangements, alterations, or modifications that can be made which, if made for the employee, will enable the employee to perform the Required Tasks

(e) Fifth, s 5(2)(b) of the DD Act provides that the adjustments must be of a character which, if not made, would have a particular effect. The required effect is that the aggrieved person, because of his or her disability, is treated "less favourably" than a person without the disability would be treated in circumstances that are not materially different. Paragraph (b) of s 5(2) of the DD Act, therefore, contemplates that the aggrieved person is "treated less favourably" because of his or her disability; but an adjustment is reasonably available which, if the discriminator makes it, will eliminate the aggrieved person's being treated less favourably, or, perhaps, will reduce the extent to which the person with a disability will be treated less favourably, because of that person's disability.

(f) Sixth, the expression "treated less favourably", as it appears in s 5(2)(b) of the DD Act, requires additional comment. It does not have the same meaning as "treated less favourably" in s 5(1) of the DD Act. In s 5(1) "treated less favourably" means the less favourable treatment the aggrieved person experiences when the discriminator, because the aggrieved person has a disability, treats the aggrieved person differently than he or she would treat a person who does not have the disability in circumstances that are not materially different. In s 5(2), on the other hand, "treated less favourably" means the disadvantages the aggrieved person experiences because of his or her disability, not because the discriminator has treated the aggrieved person differently than he or she would treat a person without a disability in circumstances that are not materially different. Subsection 5(2) defines discrimination as a person's treating an aggrieved person no differently than he or she would treat a person who does not have a disability in circumstances where an adjustment could reasonably be made that would overcome or perhaps ameliorate the disadvantages the aggrieved person has because of his or her disability when compared with persons who do not have the disability in circumstances that are not materially different.

(g) Seventh, the adjustment must be a "reasonable adjustment". Subsection 4(1) of the DD Act provides that an "adjustment to be made by a person is a reasonable adjustment unless making the adjustment would impose an unjustifiable hardship on the person". This should be read with s 11 of the DD Act. Subsection 11(1) provides that when determining whether a hardship that would be imposed on a person would be an unjustifiable hardship, all relevant circumstances of the particular case must be taken into account, including, the matters identified in s 11(1). In addition, s 11(2) provides that, for the purposes of the DD Act, the burden of proving that something would impose unjustifiable hardship lies on the person claiming unjustifiable hardship.

(h) Eighth, s 5 and s 6 should be read with s 21A of the DD Act, subsection one of which provides as follows:

This Division does not render it unlawful for a person (the discriminator) to discriminate against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:

(a) the discrimination relates to particular work (including promotion or transfer to particular work); and

(b) because of the disability, the aggrieved person would be unable to carry out the inherent requirements of the particular work, even if the relevant employer, principal or partnership made reasonable adjustments for the aggrieved person.

1. Thus, under s 5(2) of the DD Act, an alleged discriminator will engage in unlawful discrimination against an aggrieved person if the following occurs:

(a) the aggrieved person has a disability;

(b) because of his or her disability, the aggrieved person is or would be treated less favourably than a person without the disability is or would be treated in circumstances that are not materially different; that is, the aggrieved person, because of his or her disability, is or would be disadvantaged by the discriminator's treating the aggrieved person in the same way the discriminator would treat a person without the disability in circumstances that are not materially different;

(c) an adjustment is available to be made by the alleged discriminator which, if not made, will have the effect of the aggrieved person's continuing to be treated less favourably, in the sense referred to in (b), than a person without the disability would be treated in circumstances that are not materially different;

(d) an occasion or occasions arose for the alleged discriminator to decide whether to make the adjustment, but the alleged discriminator did not make, or the discriminator proposed not to make, the adjustment; and

(e) the alleged discriminator does not attempt to prove, or otherwise cannot prove, that the making of the adjustment would impose unjustifiable hardship on the alleged discriminator.

1. The third form of discrimination is defined in s 6(1) of the DD Act which provides as follows:

For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:

(a) the discriminator requires, or proposes to require, the aggrieved person to comply with a requirement or condition; and

(b) because of the disability, the aggrieved person does not or would not comply, or is not able or would not be able to comply, with the requirement or condition; and

(c) the requirement or condition has, or is likely to have, the effect of disadvantaging persons with the disability.

1. Subsection 6(3) of the DD Act provides that s 6(1) does not apply if the requirement or condition is reasonable, having regard to the circumstances of the case. Subsection 6(4) provides that the burden of proving that the requirement or condition is reasonable lies on the person who requires or proposes to require the person with the disability to comply with the requirement or condition.

1. The fourth type of discrimination is defined in s 6(2) of the DD Act which provides:

For the purposes of this Act, a person (the discriminator) also discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:

(a) the discriminator requires, or proposes to require, the aggrieved person to comply with a requirement or condition; and

(b) because of the disability, the aggrieved person would comply, or would be able to comply, with the requirement or condition only if the discriminator made reasonable adjustments for the person, but the discriminator does not do so or proposes not to do so; and

(c) the failure to make reasonable adjustments has, or is likely to have, the effect of disadvantaging persons with the disability.

1. As with s 6(1) of the DD Act, s 6(3) provides that s 6(2) of the DD Act does not apply if the requirement or condition is reasonable, having regard to the circumstances of the case; and s 6(4) of the DD Act provides that the burden of proving that the requirement or condition is reasonable lies on the person who requires or proposes to require the person with the disability to comply with the requirement or condition.

Do either or both of the originating application or Further ASC not articulate a reasonably arguable case?

1. It appears from the originating application and the Further ASC that the discrimination Mr Fahda alleges Bupa engaged in is that provided for by s 5(2) of the DD Act, namely, failure to make reasonable adjustments. In order to succeed on discrimination based on s 5(2), therefore, Mr Fahda would have to allege and prove the following:

(a) Mr Fahda had a disability while he was employed by Bupa as a probationary outbound retention advisor.

(b) Bupa treated Mr Fahda in the same way as it treated other probationary outbound retention advisors who were not in a materially different position.

(c) Because of his disability, Bupa's treating Mr Fahda in the same way as it treated other probationary outbound retention advisors who were not in a materially different position resulted in Mr Fahda being treated less favourably than the other probationary outbound retention advisors.

(d) Adjustments were available to be made for Mr Fahda which, if Bupa made them, would have resulted in Bupa not treating Mr Fahda less favourably than the other probationary outbound retention advisors.

(e) Bupa did not make, or proposed not to make, the adjustments identified in (d).

1. It can be said that, in general terms, the originating application and the Further ASC allege that Mr Fahda suffered from a disability, the disability prevented him from being able to meet the requirements Bupa had expected of him, that he sought adjustments, but Bupa did not make any adjustments. The difficulty with the originating application and the Further ASC, however, is they lack material facts:

(a) First, Mr Fahda described the disability from which he claims he suffered as "colitis/Chron[']s/Anxiety". But in neither the originating application nor in the Further ASC does Mr Fahda identify the nature of the condition or conditions intended to be denoted by "colitis/Chron[']s/Anxiety". In particular, Mr Fahda does not identify features of the condition or conditions that Mr Fahda alleges put him in a less favourable position than the other probationary outbound retention advisors, if Bupa were not to make any adjustments.

(b) Second, there is nothing other than Mr Fahda's own assertions, expressed in conclusory terms, that the condition or conditions intended to be denoted by "colitis/Chron[']s/Anxiety" impacted on his ability to perform the functions he was expected to perform as a probationary outbound retention advisor. Neither the originating application nor the Further ASC identifies facts that are reasonably capable of identifying any link between the conditions Mr Fahda alleges are associated with "colitis/Chron[']s/Anxiety", the tasks Mr Fahda alleges Bupa expected him to perform as a probationary outbound retention advisor, and the ability of Mr Fahda to perform those tasks, given those conditions.

(c) Third, neither in the originating application nor in the Further ASC does Mr Fahda identify the adjustments he alleges were available to Bupa to make for Mr Fahda which, if made, would have resulted in Mr Fahda not being treated less favourably, because of the conditions Mr Fahda alleges are associated with "colitis/Chron[']s/Anxiety", than the other probationary outbound retention advisors.

1. Given these deficiencies, it is not possible to understand Mr Fahda's case based on the DD Act, as stated in the originating application and the Further ASC. For that reason, Mr Fahda ought not to proceed with the claims he makes in the Human Rights proceeding on the basis of the originating application or the Further ASC.

Should Mr Fahda be given an opportunity to file an amended originating application or further ASC?

1. The next question is whether there is no reasonable prospect that Mr Fahda will be able to formulate a reasonably arguable case based on unlawful discrimination under the DD Act. I am satisfied that Mr Fahda does not have any such reasonable prospects. First, Mr Fahda has had ample opportunity to state his case, but has only been able to create documents from which it is not possible to understand the case Mr Fahda intends to advance based on the DD Act. That is a basis for concluding that Mr Fahda's being given an opportunity to draft a further document will result in his drafting another document that will suffer from similar difficulties.
2. Second, and more importantly, there is evidence which would prevent even an accomplished pleader from being able to frame a reasonably arguable case based on an allegation that Bupa failed to make adjustments for Mr Fahda within the meaning of s 5(2) of the DD Act. The evidence relates to communications between Bupa and Mr Fahda about adjustments. Although I have already set out that evidence, it would be convenient to repeat it here:

(a) During the 19 October 2022 catch up, Ms Awwad invited Mr Fahda to inform her of what he would need from Ms Awwad to support him; and at the 25 October 2022 catch up Ms Awwad offered Mr Fahda two options, and Mr Fahda accepted one of them. Ms Awwad stated that that modification would be in place until 20 November 2022.

(b) As he states in the originating application, on 14 November 2022 Mr Fahda sent an email to Ms Gloyne requesting a follow up meeting to "discuss Allowances and how its applied to the softphone". Ms Gloyne responded by email asking that Mr Fahda elaborate on what he meant, and suggested that that was something best addressed with Ms Awwad.

(c) On 15 December 2022 Mr Fahda requested permanent adjustments; and he met Ms Gloyne on 20 December 2022 to discuss Mr Fahda's request for adjustments. Ms Gloyne responded with an email on 21 December 2022 requesting Mr Fahda's authorisation to write to his doctor to obtain further information "to understand how we can best support you".

(d) On 23 January 2023 Ms Gloyne sent an email to Mr Fahda in which she enquired whether he had medical information to provide. Mr Fahda responded by providing a doctor's certificate dated 6 December 2022. Ms Gloyne responded by email sent on 24 January 2023 acknowledging receipt of the medical certificate, but noting that the information Mr Fahda provided did not contain any recommended workplace adjustment from Mr Fahda's medical practitioner.

(e) On 25 January 2023 Mr Fahda provided a certificate from Dr Kobra; but on the same day Ms Gloyne sent an email to Mr Fahda by which she provided a letter addressed to Dr Kobra requesting further information. The evidence does not reveal whether Mr Fahda provided the letter to Dr Kobra; but there is no evidence that Dr Kobra responded to the letter addressed to him that Ms Gloyne had drafted. Mr Fahda instead arranged for a disability advocate to send an email to Ms Gloyne on 1 February 2023 requesting that Mr Fahda be allowed until 20 February 2023 to provide further information relevant to adjustments.

1. Given this evidence, it cannot reasonably be alleged that at any time during Mr Fahda's employment with Bupa, Bupa did not make, or proposed not to make reasonable adjustments. Bupa made the adjustment Ms Awwad discussed with Mr Fahda at the catch up of 25 October 2022; and, after Mr Fahda indicated he wanted permanent adjustments, Bupa manifested a willingness to consider whether adjustments needed and could be made for Mr Fahda by inviting Mr Fahda to provide information, including medical information, that would assist Bupa in determining those questions. The occasion, however, for Bupa to determine whether Mr Fahda did require adjustments and, if so, whether it was reasonable for Bupa to make any such adjustments, did not arise; and that is because Mr Fahda did not provide information Bupa requested he provide to enable Bupa to determine whether there were reasonable adjustments that could be made.
2. It could be argued that Bupa's not deciding, without further information, to make the permanent adjustments Mr Fahda requested at the meeting of 15 December 2022 constituted Bupa's not making adjustments, or proposing not to make adjustments. Such an argument, however, would not have a reasonable prospect of success. Subsection 5(2) of the DD Act cannot reasonably be construed as requiring a person to whom a request for adjustments has been made to immediately agree to make them without making any enquiry as to the necessity or possibility or reasonableness of making the adjustments. As I have already noted, s 5(2) presupposes that, once the alleged discriminator becomes aware of the availability of adjustments, or of a claim that adjustments can be made, the discriminator would have a reasonable time within which to determine whether, given the disability, the adjustments are necessary, and, if so, whether they can be made or can reasonably be made.
3. In any event, even if it be assumed Bupa did not make the permanent adjustments Mr Fahda requested at the meeting of 15 December 2022, or Bupa proposed not to make them, and, for that reason, it discriminated against Mr Fahda within the meaning of s 5(2) of the DD Act, the nature of the adjustments Mr Fahda requested are such that Mr Fahda would not have a reasonable prospect of resisting Bupa's being able to establish that the adjustments, if made, would impose an unjustifiable hardship on it; or that, assuming the adjustments were necessary, given Mr Fahda's disability, the necessary implication would be that the disability from which Mr Fahda suffers prevented him from carrying out the inherent requirements of an outbound retention advisor. That would be so because the adjustments, if made, would in effect have granted to Mr Fahda the right to determine at any time whether, in his judgment, he was in a position to perform his work.

Other claims made in the Human Rights proceeding

1. Mr Fahda also alleges Bupa breached the SD Act and the RD Act. In relation to the claims based on the SD Act, Fahda relies only on most of his team being women, and Ms Awwad openly advocating for feminism; and in relation to his claims based on the RD Act, Mr Fahda relies on his having an Arabic background. These alleged facts by themselves are manifestly incapable of supporting a claim under the SD Act or the RD Act; and Mr Fahda has not identified any other evidence, or made any other contention, that is capable of showing that he has or a reasonable cause of action based on either the SD Act or the RD Act.

Conclusion on claims made in the Human Rights proceeding

1. I am satisfied Mr Fahda does not have a reasonable prospect of succeeding on any of the claims he makes in the Human Rights proceeding.

1. In each of the Form 2, Form 4, and Human Rights proceedings, I propose to order that the proceeding be dismissed; and grant Bupa liberty to apply for an order for costs within 35 days after I pronounce my orders.

I certify that the preceding one hundred and sixty-nine (169) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis.

[1] The ASC is dated 20 February 2024, and commences at page 84 of Exhibit B.

[2] The Further SC is dated 27 March 2024, and it commences at page 96 of Exhibit B.

[7] Exhibit B, page [25] (Overview, [3]).

[9] Exhibit B, pages 25-26 (Overview, [3]).

[12] Exhibit B, page 26 (Investigation of internal complaints raised by Applicant, [1], [2].

[13] Exhibit C, page 2226, at pages 2229-2230.

[14] Exhibit B, page 43; Exhibit C, page 1263.

[16] Exhibit B, page 26 (Investigation of internal complaints raised by Applicant, [1], [2].

[17] Exhibit B, page 26 (Investigation of internal complaints raised by Applicant, [3], [4].

[22] The document is annexed to that part of what I later describe as the "June Affidavit" that was lodged for filing at 4:21:00 PM on 19 June 2023.

[26] All information in this paragraph is obtained from Exhibit C, page 394.

[46] Ellis v Wadjemup Trading Pty Ltd [2018] FCCA 3075.

[57] Przybylowski v Australian Human Rights Commission (No 2) [2018] FCA 473, at [7].

[58] This section reproduces what I have said in Ocampo v Australian Aged Care Quality and Safety Commission [2025] FedCFamC2G 1038, at [58]-[74].

[59] In this section of my reasons I have repeated much of what I said in Toki v All Class Training Pty Ltd [2024] FedCFamC2G 566, at [74]-[91].

[60] Sayabath v Willowdale Nominees Pty Ltd, Williams, Cooper, Notley [2023] FedCFamC2G 104, at [45]-[61].

[61] Commonwealth Bank of Australia v Finance Sector Union of Australia [2007] FCAFC 18; (2007) 157 FCR 329, at 341 [72].

[62] Childs v Metropolitan Transport Trust [1981] FCA 200.

[63] Maritime Union of Australia & Ors v Geraldton Port Authority & Ors [1999] FCA 899; (1999) 165 ALR 67, at 100-101 [229].

[64] Childs v Metropolitan Transport Trust [1981] FCA 200.

[65] Alam v National Australia Bank Limited [2021] FCAFC 178, at [59]-[60].

[67] The origins of that expression in the context of s 340(1)(c)(ii) of the FW Act is Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271, at [625].

[68] Qantas Airways Limited v Transport Workers' Union of Australia [2023] HCA 27, at [36].

[69] Cummins South Pacific Pty Ltd v Keenan [2020] FCAFC 204, at [34]; Alam v National Australia Bank Limited [2021] FCAFC 178, at [85].

[70] Construction, Forestry, Maritime, Mining and Energy Union v Quirk [2023] FCAFC 163, at [43] (Rares ACJ) and [337] (Katzmann J).

[71] Construction, Forestry, Maritime, Mining and Energy Union v Quirk [2023] FCAFC 163, at [516], and [522].

At [523], however, Colvin J noted that in _Qantas "_Steward J at [116] referred to Shea and Whelan with approval as being correct in requiring the ability to make a complaint as expressed in s 341(c) to be 'underpinned by some entitlement or right to do so'. However, this appears to be a minority view". See also Dorsch v HEAD Oceania Pty Ltd [2024] FCA 162, at [217] (Raper J, quoting the plurality in Qantas).

[72] Henry v Leighton Admin Services Pty Ltd & Anor [2015] FCCA 1923, at [77].

[74] Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32, at [127] (Gummow and Hayne JJ).

[75] Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32, at [140] (Heydon J).

[76] Australian Building and Construction Commissioner v Hall [2018] FCAFC 83, at [14].

[77] Australian Building and Construction Commissioner v Hall [2018] FCAFC 83, at [15].

[78] Monash Health v Singh [2023] FCAFC 166, at [57].

[79] Paragraph 3 of the ASC does include "section 352 of the Disability Discrimination Act 1992 (cTH)", but that appears to be an error.

[80] In the following paragraphs I repeat most of what I said in Hudson v Australian Broadcasting Corporation [2016] FCCA 917, at [22]-[51].

[81] Purvis v State of New South Wales (Department of Education & Training) [2003] HCA 62; (2003) 217 CLR 92 at [114] (McHugh and Kirby JJ).

[82] Purvis v State of New South Wales (Department of Education & Training) [2003] HCA 62; (2003) 217 CLR 92 (Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan, Heydon JJ).

[83] Purvis v State of New South Wales (Department of Education & Training) [2003] HCA 62; (2003) 217 CLR 92 at [273].

[84] Purvis v State of New South Wales (Department of Education & Training) [2003] HCA 62; (2003) 217 CLR 92 at [223].

[85] Purvis v State of New South Wales (Department of Education & Training) [2003] HCA 62; (2003) 217 CLR 92 at [224].

[86] Purvis v State of New South Wales (Department of Education & Training) [2003] HCA 62; (2003) 217 CLR 92 at [11].

[87] Purvis v State of New South Wales (Department of Education & Training) [2003] HCA 62; (2003) 217 CLR 92 at [11].

[88] Oxford English Dictionary online edition.